text
"an Eligible Assignee. The Additional Lender hereby extends to the Borrower, subject to and on the terms and conditions set forth in the Credit Agreement, a Revolver Commitment in the amount of $15,000,000, from and after the Effective Date of this Agreement, and agrees to perform in accordance with the terms thereof all of the obligations which by the terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a Lender thereunder. The Additional Lender represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after the Effective Date of this Agreement, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and shall have and perform all of the obligations of a Lender thereunder, and (iii) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements of the Borrower delivered pursuant to Section 5.01 of the Credit Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to extend the Revolver Commitment to the Borrower pursuant to the terms of the Credit Agreement, on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender. The Additional Lender agrees that it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions and analysis in taking or not taking action under the Credit Agreement or any other Loan Documents."
"SECTION 3. Effect of Agreement. On the Effective Date, this Agreement shall have the effects set forth in Section 2.14(e) of the Credit Agreement and the Additional Lender and the Administrative Agent shall make such payments and adjustments among the Lenders as are contemplated thereby such that each Lenders Advances remain consistent with their pro rata percentage of the Revolver Commitments after giving effect to the Commitment Increase."
"SECTION 7. No Other Amendment. Except for the supplements set forth in this Agreement, the text of the Credit Agreement shall remain unchanged and in full force and effect. On and after the Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement, as supplemented by this Agreement. This Agreement is not intended to effect, nor shall it be construed as, a novation. The Credit Agreement and this Agreement shall be construed together as a single agreement. This Agreement shall constitute a Loan Document under the terms of the Credit Agreement. Nothing herein contained shall waive, annul, vary or affect any provision, condition, covenant or agreement contained in the Credit Agreement, except as herein expressly agreed, nor affect or impair any rights, powers or remedies under the Credit Agreement as hereby supplemented. The Lenders and the Administrative Agent do hereby reserve all of their rights and remedies against all parties who may be or may hereafter become secondarily liable for the repayment of the Obligations. The Borrower and Guarantors promise and agree to perform all of the requirements, conditions, agreements and obligations under the terms of the Credit Agreement as hereby supplemented, such obligations under the Credit Agreement, as supplemented, the Collateral Documents and the other Loan Documents being hereby"
"h.The Company and each of its Subsidiary shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable know-your-customer rules and regulations, including the Patriot Act, to the extent the Company shall have received written requests therefor at least seven (7) days prior to the Restatement Effective Date."
"b.Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any relevant appellate court, in any action or proceeding arising out of or relating to any Loan"
"reason, then the Eurodollar Rate shall be the rate, determined by the Agent as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the beginning of such Interest Period pertaining to such Eurodollar Rate Loan, to be the average (rounded upwards, if necessary, to the nearest one sixteenth of one percent (1/16th of 1%)) of the per annum rates of interest at which dollar deposits in immediately available funds, approximately equal in principal amount to such Eurodollar Rate Loan and for a maturity comparable to the Interest Period, are offered to KeyBank National Association by prime banks in the London interbank market."
"Governmental Authority means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial or regulatory functions of or pertaining to government and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, including any board of insurance, insurance department or insurance commissioner."
"Lenders has the meaning specified in the introduction to this Agreement and includes any other Person that shall have become a party hereto pursuant to an Assignment and Assumption in accordance with Section 10.07, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption."
"Material Acquisition means any Acquisition of assets by the Company or its Subsidiaries in a transaction or series of related transactions for consideration exceeding $80,000,000, other than any such acquisition (x) by any Insurance Subsidiary in the ordinary course of business in compliance with the investment policy approved by the board of directors of such Insurance Subsidiary or (y) by the Company in compliance with the investment policy approved by the board of directors of the Company."
"Organization Documents means (i) with respect to any corporation, the certificate or articles of incorporation, the bylaws, any certificate of designation or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation, (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and all applicable resolutions or consents of the governing body (or any committee thereof) of such limited liability company and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and all applicable resolutions or consents of the governing body (or any committee thereof), or in the case of clauses (i), (ii) and (iii), the equivalent or comparable constituent documents with respect to any Foreign Subsidiary."
"(a)the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Subsidiary Debt renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Subsidiary Debt the amount of all fees and expenses, including premiums, incurred in connection therewith);"
"Pro Rata Share means, with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving Exposure of all Lenders."
"Purchase Money Debt means Indebtedness incurred by a Person in connection with the purchase of fixed or capital assets by such Person, in which assets the seller or financier thereof has taken or retained a Lien; provided that (x) any such Lien attaches to such assets concurrently with or within 270 days after the purchase thereof by such Person and (y) at the time of incurrence of such Indebtedness, the aggregate principal amount of such Indebtedness shall not exceed the costs of the assets so purchased plus fees and expenses reasonably related thereto."
"Quarterly Statement means the quarterly statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of its jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing quarterly statutory financial statements and shall contain the type of financial information permitted by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith."
"Revolving Commitment means the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder, and Revolving Commitments means such commitments of all Lenders in the aggregate. The amount of each Lenders Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Assumption or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions hereof. Unless context shall otherwise require, Revolving Commitment shall include any Original Revolving Commitment, New Revolving Commitment or Extended Revolving Commitment."
"Subsidiary of a Person means any corporation, partnership, limited liability company, limited liability partnership, joint venture, trust, association or other unincorporated organization of which or in which such Person and such Persons Subsidiaries own directly or indirectly more than 50% of (a) the combined voting power of all classes of stock having general voting power under ordinary circumstances to elect a majority of the board of directors, if it is a corporation, (b) the voting or managing interests (which shall mean the general partner in the case of a partnership), if it is a partnership, joint venture or similar entity, (c) the beneficial interest, if it is a trust, association or other unincorporated organization or (d) the membership interest, if it is a limited liability company; provided that (i) Wendover Limited, (ii) RiskGrid Technologies Inc. (iii) CounterpartyLink Ltd., (iv) CreekSource LLC and (v) for the avoidance of doubt, Mill Creek CLO Ltd., Sugar Creek CLO Ltd., Cedar Creek CLO Ltd., Silver Creek CLO Ltd., Clear Creek CLO Ltd. and any other variable interest entity formed after the Closing Date shall not be considered a Subsidiary for any purpose of this Agreement. Unless otherwise specified, Subsidiary means a Subsidiary of the Company."
"(d)If, at any time after the date of this Agreement, any material change is made to GAAP or the Companys accounting practices that would affect in any material respect the determination of compliance with the covenants set forth in this Agreement, the Company shall notify the Agent of the change and the Company and the Agent shall negotiate in good faith to amend such covenant, subject to the approval of the Required Lenders, to restore the Company and the Lenders to the position they occupied before the implementation of such material change in GAAP or accounting practices; provided that if the Company and the Agent are unable to reach agreement within 30 days following the implementation of such material change, the Agent shall be permitted, acting in good faith, to make such amendments, in each case subject to the approval of the Required Lenders, to the covenants set forth in this Agreement as it reasonably determines are necessary to restore the Company and the Lenders to the position they occupied prior to the implementation thereof."
"(v)If for any reason Revolving Loans are not made pursuant to Section 2.03(b)(iv) in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon. Upon one Business Days notice from Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Swing Line Lenders Lending Office. In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lenders participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable."
"(b)Notice of Issuance. Whenever the Company desires the issuance of a Letter of Credit, it shall deliver to the Agent an Issuance Notice no later than 11:00 a.m. (New York City time) at least three Business Days (in the case of standby letters of credit) or five Business Days (in the case of commercial letters of credit), or in each case such shorter period as may be agreed to by the Issuing Bank identified on such Issuance Notice in any particular instance, in advance of the proposed date of issuance. Subject to the conditions set forth in Section 4.02, such Issuing Bank shall issue the requested Letter of Credit only in accordance with such Issuing Banks standard operating procedures. If requested by such Issuing Bank, the Company also shall submit a letter of credit application on such Issuing Banks standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, such Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, the applicable Issuing Bank shall promptly notify the Agent of such issuance which shall notify each Lender with a Revolving Commitment of such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lenders respective participation in such Letter of Credit pursuant to Section 2.04(e)."
"(i)if the Company failed to make such payment, each Lender shall forthwith on demand repay to the Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Agent to such Lender to the date such amount is repaid to the Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and"
"(d)If any Lender makes available to the Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Company by the Agent because the conditions to the extension of Loans set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest."
"(i)Grant of Security Interest. The Company, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (ii) below. If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Company will, promptly upon demand by the Agent, pay or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender)."
"(ii) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.16 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lenders obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein."
"(ii)the allocation of the participation exposure with respect to any then- existing or subsequently issued or made Letter of Credit or Swing Line Loan as between the Revolving Commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof until the applicable Revolving Commitment Termination Date has occurred,"
"(ii)the Revolving Loans or Revolving Commitments, as applicable, of any Lender extended pursuant to any Extension (as applicable, Extended Revolving Loans or Extended Revolving Commitments) shall have the same terms as the Class of Revolving Loans or Revolving Commitments, as applicable, subject to the related Extension Amendment (as applicable, Existing Revolving Loans or Existing Revolving Commitments); except"
"(c)Indemnification by the Company. Without duplication of Section 3.01(a), the Company shall indemnify the Agent and each Lender, within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes in respect of payments under any Loan Document or Other Taxes (including Indemnified Taxes or Other Taxes imposed on or attributable to amounts payable under this Section) that are imposed on or payable by the Agent or such Lender, as the case may be, and reasonable expenses arising therefrom, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If the Company reasonably believes that there is an appropriate basis to pursue a refund of any Indemnified Tax or Other Tax indemnified by the Company under this Section 3.01(c), or for which the Obligor has paid additional amounts under Section 3.01(a), the affected Agent or Lender (as applicable) shall, upon the Companys written request and at the Companys expense, pursue such refund; provided that no Agent or Lender shall be obligated to pursue any such refund if such Agent or Lender determines in good faith that it would be materially disadvantaged or prejudiced, or subject to any unreimbursed cost or expense, by pursuing such refund. Any refund described in the preceding sentence that is received by the Agent or any Lender shall be payable to the Company to the extent provided in Section 3.01(f)."
any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in U.S. federal withholding tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Company or the Agent to determine the withholding or deduction required to be made; and 
"(c)If the obligation of any Lender to make or maintain Eurodollar Rate Loans has been so terminated or suspended, the Company may elect, by giving notice to the Lender through the Agent, that all Loans which would otherwise be made or maintained by the Lender as Eurodollar Rate Loans shall instead be Base Rate Loans."
"(a)If the Required Lenders determine (i) that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period (including, without limitation, because ICE LIBOR is not available or published on a current basis) with respect to a proposed Eurodollar Rate Loan, or (ii) that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Agent will promptly so notify the Company and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Agent (upon the instruction of the Required Lenders) revokes such notice in writing. Upon receipt of such notice, the Company may revoke any notice of continuation then submitted by it pursuant to Section 2.06. If the Company does not revoke such notice of continuation, the Lenders shall make, convert or continue the Loans, as proposed by the Company, in the amount specified in the applicable notice submitted by the Company, but such Loans shall be made, converted or continued as Base Rate Loans instead of Eurodollar Rate Loans. Notwithstanding the foregoing, the Agent and each Lender shall take any reasonable actions available to them (including designation of different Lending Offices), consistent with legal and regulatory restrictions, that will avoid the need to take the steps described in this Section 3.05,"
"For purposes of determining compliance with the conditions specified in Section 4.01, each of the Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by, or acceptable or satisfactory to, the Lenders unless an officer of the Agent responsible for the Transactions shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of any Lender, such Lender shall not have made available to the Agent on the Closing Date such Lenders Pro Rata Share of the borrowing to be made on such date."
"(b)conflict with or result in any breach or contravention of, or result in or require the creation of any Lien under, any document evidencing any material Contractual Obligation to which the Obligor is a party, except for any breaches or contraventions which, in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or"
"Section 5.03Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the Transactions (including the execution, delivery or performance by, or enforcement against, the Obligor of each Loan Document to which it is a party), except such as have been obtained and are in full force and effect (including without limitation, the approval of the Department of Insurance of the jurisdiction of the domicile of the Insurance Subsidiaries)."
"Section 5.08Margin Regulations. Neither the Company nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. Margin Stock does not constitute more than 25% of the value of the consolidated assets of the Company and its Subsidiaries. None of the proceeds of the Loans will be used to acquire Margin Stock. None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act of 1933, as amended, or the Exchange Act, or regulations issued pursuant thereto, or Regulation T, U or X of the FRB."
"(ii)were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and changes in Capital and Surplus of the respective Insurance Subsidiaries covered thereby for the respective periods then ended."
"(c)There has been no Release of Hazardous Materials at, on, under or from any property now or, to the knowledge of the Company, previously owned or leased by the Company or any of its Subsidiaries that, individually or in the aggregate, have had, or could reasonably be expected to have, a Material Adverse Effect."
"(c)promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the financial statements of the Company made by such accountants, including the comment letter submitted by such accountants to management in connection with their annual audit;"
"(b)preserve and maintain in full force and effect all governmental rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business, except, in the case of this clause (b), where such failure to preserve and maintain could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"Until all principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification obligations not yet due and payable), all Commitments have been terminated and all Letters of Credit have been cancelled or have expired, the Company covenants and agrees with the Lenders that:"
"(c)collateral consisting of cash or Cash Equivalents securing Permitted Swap Obligations in an aggregate amount not to exceed, at any time, $60,000,000; provided that, for purposes of this clause (c), in the case of Cash Equivalents described in clauses (a), (b), (e) and (f) of the definition thereof, the one year (or twelve-month, as applicable) maturity limitation set forth in such clauses shall be disregarded;"
"(l)issuances of Capital Stock (i) by the Company, (ii) by a directly or indirectly Wholly-Owned Subsidiary of the Company to the Company or to one or more Wholly-Owned Subsidiaries of the Company or (iii) by a non-Wholly-Owned Subsidiary of the Company to the respective equity holders of such non-Wholly- Owned Subsidiary, on a pro rata basis;"
"(a)Non-Payment. The Company fails to pay (i) when and as required to be paid herein, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, any amount of principal of any Loan, or (ii) within five (5) days after the same becomes due, any interest, fee or any other amount payable hereunder or under any other Loan Document; or"
"(h)Pension Plans and Welfare Plans. With respect to any Single Employer Pension Plan or Multiemployer Plan, any ERISA Event has occurred that could reasonably be expected to result in the incurrence of liability by the Company, any of its Subsidiaries or any ERISA Affiliate or steps are taken to terminate any Multiemployer Plan and such steps could reasonably be expected to result in any liability of the Company, any of its Subsidiaries or any ERISA Affiliate, where in any event, individually or in the aggregate, the liability incurred by the Company and its Subsidiaries would have a Material Adverse Effect; or"
"No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent-Related Person."
"Section 10.03No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege."
"(b)To the extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with or as a result of this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby."
"Section 10.06Marshalling; Payments Set Aside. Neither the Agent nor any Lender shall be under any obligation to marshal any assets in favor of the Obligor or any other Person or against or in payment of any or all of the Obligations. To the extent that the Company makes a payment to the Agent, any Issuing Bank or the Lenders (or to the Agent, on behalf of Lenders or any Issuing Bank), or any Agent, Issuing Bank or Lender enforces any security interests or exercises any right of setoff, and such payment or the proceeds of such enforcement or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred and (b) each Lender severally agrees to pay to the Agent upon demand its pro rata share of any amount so recovered from or repaid by the Agent."
"(b)Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it (provided, however, that pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitments)); provided that:"
"Each Lender that sells a participation pursuant to this Section 10.07(e) shall, acting solely for U.S. federal income tax purposes as a non-fiduciary agent of the Company, maintain a register on which it records the name and address of each participant and the principal amounts (and stated interest) of each participants participation interest with respect to the Loans or other obligations under the Loan Documents (each, a Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participants interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary."
"Section 10.13Severability. If any provision of any Loan Document is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions of the Loan Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Lenders in order to carry out the intentions of the parties thereto as nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction."
"(b)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Sections 2.09(c), 3.01, 3.03 and 3.04) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts)."
"Section 10.19Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists."
"Business Day means a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and if the applicable Business Day relates to any borrowing, payment or rate selection of Eurocurrency Advances, a day on which dealings are carried on in the London interbank market and banks are open for business in London and in the country of issue of the currency of such Eurocurrency Advances (or, in the case of Advances denominated in Euro, a TARGET2 Day)."
"Facility Termination Date means (a)October19, 2022, subject to the extension thereof pursuant to Section2.22 or (b)any earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof; provided, however, that the Facility Termination Date of any Lender that is a Non-Extending Lender to any requested extension pursuant to Section2.22 shall be the Facility Termination Date in effect immediately prior to the applicable Anniversary Date for all purposes of this Agreement."
"(a) the Aon Retirement Plan (composed of the following sections; Aon Alexander& Alexander UK Pension Scheme Section, the Aon Bain Hogg Pension Scheme Section, the Aon UK Pension Scheme Section, the Hewitt Pension Fund Sectionand the Hewitt Pension& Life Assurance Plan Section), the Aon Minet Group Pension& Life Assurance Scheme, the Jenner Fenton Slade 1980 Pension Scheme,Industry Wide Coal Staff Superannuation Scheme, the Aon McMillen Pension Scheme, (in each case, as amended from time to time);"
(2)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of such Advance that falls to it by reason of Part17 of the CTA;
"(d) Any Lender may request that its Loans be evidenced by a promissory note in substantially the form of ExhibitA (including any amendment, modification, renewal or replacement thereof, a Note). In such event, each Borrower shall prepare, execute and deliver to such Lender such Note payable to such Lender. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section12.3) be represented by one or more Notes payable to the payee named therein or any assignee pursuant to Section12.3, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (a)and (b)above. Upon receipt of an affidavit of an officer of any Lender as to the loss, theft, destruction or mutilation of such Lenders Note, and, in the case of any such loss, theft, destruction or mutilation, upon cancellation of such Note, each Borrower will issue, in lieu thereof, a replacement Note in the same principal amount thereof and otherwise of like tenor."
"(b) imposes or increases or deems applicable any reserve, assessment, compulsory loan, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurocurrency Advances), or"
(c) The Loan Parties hereby agree to indemnify the Administrative Agent and each Lender for the full amount of any Indemnified Taxes (including any Indemnified Taxes imposed on amounts payable under this Section3.5) paid by the Administrative Agent or such Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto. Payments due under this indemnification shall be made within thirty (30) days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section3.6.
"would not reasonably be expected to have a Material Adverse Effect. None of the execution, delivery and performance by any Loan Party of the Loan Documents to which it is a party, the application of the proceeds of the Loans, or compliance with the provisions of the Loan Documents will, or at the relevant time did, (a)violate any law, rule, regulation (including Regulation U), order, writ, judgment, injunction, decree or award binding on such Loan Party or such Loan Partys Organization Documents, (b)violate the provisions of or require the approval or consent of any party to any indenture, instrument or agreement to which such Loan Party is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than Liens permitted by the Loan Documents) in, of or on the Property of such Loan Party pursuant to the terms of any such indenture, instrument or agreement, or (c)require any consent of the stockholders of any Person (other than to the extent obtained and in full force and effect), in the case of each of clauses (a), (b)and (c), except those which are being contested in good faith by appropriate proceedings or for any violation of, or failure to obtain an approval or consent required under, any such indenture, instrument or agreement that would not reasonably be expected to have a Material Adverse Effect."
"6.9. Inspection. The Parent will, and will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective representatives and agents, during normal business hours, to inspect any of the Property, corporate books and financial records of such Loan Party and each Subsidiary, to examine and make copies of the books of accounts and other financial records of such Loan Party and each Subsidiary, and to discuss the affairs, finances and accounts of such Loan Party and each Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Lenders may designate; provided that neither the Parent nor any of its Subsidiaries will be required to disclose, permit the inspection, examination or making of extracts, or discussion of, any document, information or other matter in respect of which disclosure to the Administrative Agent or any Lender (or its respective designated representative) is as reasonably determined by an officer of the Parent then prohibited by applicable law or any agreement binding on the Parent or any of its Subsidiaries or is subject to attorney-client or similar privilege or constitutes attorney work product; provided, further, excluding any such visits and inspections during the continuation of a Default, no Lender shall exercise such rights more often than one (1)time during any calendar year at the expense of the Parent; provided, further, when a Default is continuing, the Administrative Agent, and each Lender may do any of the foregoing at the expense of the Parent at any time during normal business hours and upon reasonable advance notice. The Parent will keep or cause to be kept, and cause each Subsidiary to keep or cause to be kept, appropriate records and books of account in which complete entries are to be made reflecting its and their business and financial transactions, sufficient to permit the preparation of financial statements in accordance with Section6.1."
"6.10. Merger. The Parent will not, nor will it permit any Subsidiary to, merge or consolidate with or into any other Person or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Parent, except that:"
"(i) in the case of a merger or consolidation to which the Parent is a party, (A)the Parent is the surviving corporation and (B)the Parent remains organized under the laws of the United Kingdom (including its member countries) or of the United States, any state thereof or the District of Columbia;"
"(b) Liens imposed by law, such as carriers, warehousemens and mechanics liens and other similar liens arising in the ordinary course of business which secure the payment of obligations not more than ninety (90) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books;"
"(b) Except as would not reasonably be expected to have a Material Adverse Effect, neither the Parent nor any Subsidiary will be (i)an employer (for the purposes of Sections 38 to 51 of the Pensions Act 2004) of any occupational pension scheme which is not a money purchase scheme (as both such terms are defined in the Pension Schemes Act 1993), is not a Permitted UK Defined Benefit Pension Plan and is not a scheme within Section38(1)(b)of the Pensions Act 2004 or (ii)connected with or an associate (as those terms are used in Sections 38 and 43 of the Pensions Act 2004) of such an employer."
"(b) Indebtedness under the Five Year Credit Agreement dated as of February2, 2015 among the Parent, Aon Corporation, Aon UK Limited, the lenders parties thereto and Citibank, as administrative agent, and any replacement, renewal or refinancing thereof (the 2015 Credit Agreement), provided (i)that the committed amount thereof is not increased to an aggregate amount greater than $1,500,000,000 and (ii)no other Subsidiary (other than a Subsidiary that becomes a borrower thereunder) becomes obligated in respect thereof;"
"7.1. Representations and Warranties. Any representation or warranty made or deemed made by or on behalf of any Loan Party or any of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made."
"7.5. Cross-Default. (i)Failure of any Loan Party or any of its Subsidiaries to pay any Indebtedness aggregating in excess of $100,000,000 when due (after giving effect to any applicable grace period); (ii)the default by any Loan Party or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement or agreements under which any such Indebtedness was created or is governed, or the occurrence of any other event or existence of any other condition, in each case, the effect of any of which is to cause such Indebtedness to become due prior to its stated maturity; or (iii)any such Indebtedness of any Loan Party or any of its Subsidiaries shall be required to be prepaid (other than by a regularly scheduled payment) prior to the stated maturity thereof; provided that this clause (iii)shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the Property securing such Indebtedness."
"9.11. Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a)to its Affiliates and to its and its Affiliates respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives, and third party settlement providers (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b)to the extent requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)to the extent required by applicable laws"
"Without limiting Section9.4, each Loan Party agrees that the terms of this Section9.11 shall set forth the entire agreement between the Loan Parties and each Lender (including the Administrative Agent) with respect to any confidential information previously or hereafter received by such Lender in connection with this Agreement, and this Section9.11 shall supersede any and all prior confidentiality agreements entered into by such Lender with respect to such confidential information."
"(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i)with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections8.1 or 8.2), or (ii)in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Unmatured Default unless and until notice"
"(v) No Assignment to Certain Persons. No such assignment shall be made (A)to the Parent or any of the Parents Affiliates or Subsidiaries, (B)to Competitors or (C)to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (C)."
"Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver which would require consent of all of the affected Lenders pursuant to the terms of Section8.2 or of any other Loan Document that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 (subject to the requirements and limitations therein, including the requirements under Section3.5(d)(it being understood that the documentation required under Section3.5(d)shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section12.2; provided that such Participant (A)agrees to be subject to the provisions of Sections 2.20 and 3.6 as if it were an assignee under Section12.2; and (B)shall not be entitled to receive any greater payment under Sections 3.1, 3.2 or 3.5, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Parents request and expense, to use reasonable efforts to cooperate with the Parent to effectuate the provisions of Section2.20 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section11.1 as though it were a Lender; provided that such Participant agrees to be subject to Section11.2 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loans or other obligations under the Loan Documents (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment,"
"(ii) If any assignment or participation is made to any Competitor without the Parents prior written consent in violation of clause (i)above, or if any Person becomes a Competitor after the applicable Trade Date, the Parent may, at its sole expense and effort, upon notice to the applicable Competitor and the Administrative Agent, (A)terminate any Commitment of such Competitor and repay all obligations of the Borrowers owing to such Competitor in connection with such Commitment and/or (B)require such Competitor to assign, without recourse (in accordance with and subject to the restrictions contained in this Section12.2), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x)the principal amount thereof and (y)the amount that such Competitor paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder."
"16.1. Choice of Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK."
"16.2. Consent to Jurisdiction,etc. (a) Jurisdiction. The Parent and each other Loan Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether at law or in equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative Agent, any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Parent or any other Loan Party or its Properties in the courts of any jurisdiction."
"Section1. Guaranty; Limitation of Liability. (a)The undersigned hereby absolutely, unconditionally and irrevocably guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of the Borrowers to the Lenders, the Administrative Agent or any indemnified party arising under the Loan Documents (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys fees and expenses incurred by the Lenders, the Administrative Agent or any indemnified party in connection with the collection or enforcement thereof). This Guaranty Supplement shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of the undersigned under this Guaranty Supplement (other than payment thereof), and the undersigned hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing. For the avoidance of doubt, the respective obligations of each Borrower are several and not joint, except to the extent such Borrower is providing a guarantee as a Guarantor."
"(d) This Designation Agreement constitutes, and the Notes to be delivered by the Designated Subsidiary when delivered will constitute, legal, valid and binding obligations of the Designated Subsidiary enforceable against the Designated Subsidiary in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally."
"The undersigned has furnished the Administrative Agent and each U.S. Borrower with a certificate of its non-U.S. Person status on IRS FormW-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1)if the information provided on this certificate changes, the undersigned shall promptly so inform each U.S. Borrower and the Administrative Agent, and (2)the undersigned shall have at all times furnished each U.S. Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments."
"Reference is hereby made to the Five-Year Credit Agreement dated as of October19, 2017 (as amended, modified, renewed or extended from time to time, the Credit Agreement) among Aon plc, a public limited company organized under the laws of England and Wales (the Parent), Aon Corporation, a Delaware corporation, the lenders party thereto and Citibank, N.A., as Administrative Agent for the Lenders."
"Pursuant to the provisions of Section3.5 of the Credit Agreement, the undersigned hereby certifies that (i)it is the sole record owner of the participation in respect of which it is providing this certificate, (ii)its direct or indirect partners/members are the sole beneficial owners of such participation, (iii)with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section881(c)(3)(A)of the Code, (iv)none of its direct or indirect partners/members is a ten- percent shareholder of any U.S. Borrower within the meaning of Section871(h)(3)(B)of the Code and (v)none of its direct or indirect partners/members is a controlled foreign corporation related to any U.S. Borrower as described in Section881(c)(3)(C)of the Code."
"THIS AMENDED AND RESTATED TERM LOAN AGREEMENT AMENDS AND RESTATES THAT CERTAIN TERM LOAN AGREEMENT DATED DECEMBER 17, 2015 (AS AMENDED AND IN EFFECT IMMEDIATELY PRIOR TO THE DATE HEREOF, THE EXISTING CREDIT AGREEMENT), ENTERED INTO BY AND AMONG GPT OPERATING PARTNERSHIP LP, A DELAWARE LIMITED PARTNERSHIP (F/K/A CSP OPERATING PARTNERSHIP LP), GPT PROPERTY TRUST LP, A DELAWARE LIMITED PARTNERSHIP, GRAMERCY PROPERTY TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST (F/K/A CHAMBERS STREET PROPERTIES), THE LENDERS FROM TIME TO TIME PARTY THERETO, AND CAPITAL ONE, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT."
"Rate shall be the rate per annum that would be applicable if the average of the two (2) highest Applicable Credit Ratings were used; provided that if such average is not a recognized rating category, then the Applicable Rate shall be the rate per annum that would be applicable if the second highest Applicable Credit Rating of the three were used. If at any time the Company or a Borrower has only one Applicable Credit Rating (and such Credit Rating is from Moodys or S&P), the Applicable Rate shall be the rate per annum applicable to such Applicable Credit Rating. If the Company or a Borrower does not have an Applicable Credit Rating from either Moodys or S&P, the Applicable Rate shall be the rate per annum applicable to an Applicable Credit Rating of below BBB-/Baa3 or unrated in the tables above."
"Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moodys, S&P or Fitch shall change, or if such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrowers and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation."
"Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term Business Day shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market."
"Contingent Obligations means, as to any Person, without duplication, (a) any contingent obligation of such Person required to be included in such Persons balance sheet in accordance with GAAP, and (b) any obligation required to be included in the disclosure contained in the footnotes to such Persons financial statements in accordance with GAAP, guaranteeing partially or in whole any Nonrecourse Indebtedness, lease, dividend or other obligation, exclusive of (i) contractual indemnities (including, without limitation, any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and (ii) guarantees of non-monetary obligations (other than guarantees of completion), in each case under clauses (i) and (ii) which have not yet been called on or quantified, of such Person or of any other Person. The amount of any Contingent Obligation described in clause (b) above in this definition shall be deemed to be (A) with respect to a guaranty of interest, interest and principal, or operating income, the sum of all payments required to be made thereunder (which in the case of an operating income guaranty shall be deemed to be equal to the debt service for the note secured thereby), calculated at the interest rate applicable to such Indebtedness, through (x) in the case of an interest or interest and principal guaranty, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (y) in the case of an operating income guaranty, the date through which such guaranty will remain in effect, and (B) with respect to all guarantees not covered by the preceding clause (A), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements required to be delivered pursuant to Sections 5.01(a) and 5.01(b). Notwithstanding anything contained herein to the contrary, guarantees of completion or other performance shall not be deemed to be Contingent"
"Foreign Lender means (a) if a Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes."
"Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government."
"Interest Period means with respect to any Eurodollar Borrowing, (a) initially, (1) for Borrowings made on the Effective Date, the period commencing on (and including) the Effective Date and ending on (but excluding) December 1, 2017 and (2) for other Borrowings, the period commencing on the date of such Borrowing and ending on (but excluding) the first day of the month immediately following the date of such Borrowing, and, (b) thereafter, the period commencing on the last day of the previous Interest Period and ending on the numerically corresponding day in the calendar month that is one, two, three, or six months thereafter, as the Borrowers may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no Interest Period shall extend beyond the Maturity Date. For purposes hereof, the date of a Borrowing"
"LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in dollars for a period equal in length to such Interest Period as displayed on the Reuters screen page that displays such rate (currently Reuters Screen Page LIBOR01 or LIBOR02) (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case the LIBO Screen Rate)) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that, if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of any applicable portion of the Obligations that has not been identified by the Borrowers to Administrative Agent in writing as being subject to a Swap Agreement that provides a hedge against interest; and provided, further, that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an Impacted Interest Period) then the LIBO Rate shall be the Interpolated Rate; provided that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of any applicable portion of the Obligations that has not been identified by the Borrowers to Administrative Agent in writing as being subject to a Swap Agreement that provides a hedge against interest."
"Material Adverse Effect means a material adverse effect on (a) the business, assets, operations or financial condition of the Company, the Borrowers and the Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under this Agreement or any other Loan Document or (c) the validity or enforceability of this Agreement or any other Loan Document or the rights of or remedies available to the Administrative Agent and the Lenders under this Agreement or any other Loan Document."
"(b) In the case of a Real Estate Asset that is not owned by a Specified Joint Venture or any Wholly-Owned Subsidiaries of any Specified Joint Venture, the Real Estate Asset is either (x) improved with one or more completed office, industrial and/or retail buildings, (y) a Development Property or (z) unimproved land."
"(h) In the case of a Real Estate Asset owned by any Specified Joint Venture: (i) the Real Estate Asset is either (x) improved with one or more completed office, industrial and/or retail buildings or (y) at all times a Real Estate Asset of the same type it was on the Effective Date; (ii) the relative percentage ownership of the Company or any of its Wholly-Owned Subsidiaries in the voting Equity Interests of the owner or lessee of such Real Estate Asset does not decrease from such relative percentage ownership interest held by the Company or any of its Wholly-Owned Subsidiaries on the Effective Date; and (iii) neither any Subsidiary of any Specified Joint Ventures that is a direct owner of such Real Estate Asset nor any Subsidiary of the Company that directly or indirectly owns Equity Interests in such direct owner has guaranteed the Indebtedness of any other Person or incurred, acquired, or suffered to exist any Recourse Indebtedness, unless such direct owner becomes a guarantor under the Term Facility and delivers to the Administrative Agent (w) a guaranty, in a form reasonably acceptable to the Administrative Agent, guaranteeing Obligations of the Borrowers hereunder, (x) customary opinion of counsel to such Person, in a form reasonably acceptable to the Administrative Agent, (y) copies of formation documents of such Person and (z) resolutions authorizing such Persons execution, delivery and performance of such guaranty."
"Wholly-Owned Subsidiary of a Person means any Subsidiary of which all of the outstanding voting Equity Interests shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person."
"(b) Effective Date Loans; Reallocation of Term Loan Commitments. On the Effective Date, the parties hereto agree that the amount of each Term Loan Lenders Term Loan Commitment is as set forth on Schedule 2.01. To effect such allocations, (1) each Existing Lender who is a party hereto and whose Term Loan Commitment on the Effective Date exceeds its Term Loan Exposure (as defined in the Existing Agreement) immediately prior to the effectiveness of this Agreement and (2) each Lender providing a new Term Loan Commitment hereunder, shall make a Term Loan in such amount as is necessary so that the aggregate principal amount of Term Loan Exposure held by such Lender as of the Effective Date (after giving effect to the re-evidencing of the Existing Loans pursuant to Section 2.1(a)) shall equal such Lenders Term Loan Commitment as of the Effective Date. The Administrative Agent shall make such applicable amounts of the proceeds of such Term Loans available to the Existing Lenders that are not a party to this Agreement (each, a Terminating Lender) as is necessary so that each Terminating Lender receives payment in full of all outstanding obligations owing to it under the Existing Agreement on the Effective Date simultaneously with the funding of the Term Loans under this Agreement. Except for Notes to be provided to the Lenders party hereto, no other documents, instruments or assignment fees shall be, or shall be required to be, executed or paid in connection with such assignments and allocations (all of which are hereby waived, as necessary)."
SECTION 2.02. Loans and Borrowings. Each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by the Term Loan Lenders with a Term Loan Commitment ratably in accordance with their respective Term Loan Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of
"(b) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of eight (8) Eurodollar Borrowings outstanding."
"(a) To make an election pursuant to this Section, the Borrowers shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrowers were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by an Authorized Officer of each Borrower."
"any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the applicable Lenders reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender."
"(f) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to, or apply for or seek any refund of any Taxes for or on behalf of, the indemnifying party or any other Person."
"(d) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.07(b) [agent loan pre-funding], Section 2.18(d) [agent pre-funding of borrower repayments] or Section 9.03(c) [lender indemnity], then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenders obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clause (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion."
"SECTION 2.19. Mitigation Obligations; Replacement of Lenders. If any Lender requests compensation under Section 2.15, or if a Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such"
"SECTION 3.17. Insurance. The Company and its Subsidiaries maintain (either directly or indirectly by causing its tenants to maintain) insurance on their material real estate assets with financially sound and reputable insurance companies (or through self-insurance provisions), in such amounts, with such deductibles and covering such properties and risks as is prudent in the reasonable business judgment of the Company."
(a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement or such Loan Document) that such party has signed a counterpart of this Agreement or such Loan Document.
"(d) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced on or before the date hereof, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrowers hereunder."
"Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees and other Obligations payable hereunder shall have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made), each of the Company and the Borrowers covenants and agrees with the Lenders that:"
"SECTION 5.06. Books and Records; Inspection Rights. The Company will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Company will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested."
"SECTION 5.09. Accuracy Of Information. Each Loan Party will ensure that any information, including financial statements or other documents, furnished to the Administrative Agent or the Lenders in connection with this Agreement or any amendment or modification hereof or waiver hereunder contains no material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect, and the furnishing of such information shall be deemed to be representation and warranty by such Loan Party on the date thereof as to the matters specified in this Section 5.09."
"period required by Section 5.11(c) below, the Company shall deliver to the Administrative Agent (a) a certificate of an Authorized Officer of the Company certifying that such Real Estate Asset satisfies the eligibility criteria set forth in the definition of Unencumbered Property, and certifying as to compliance with the financial covenants on a pro-forma basis after giving effect to the addition of such Real Estate Asset as an Unencumbered Property, which certificate shall include calculations in reasonable detail demonstrating such compliance, including as to the calculation of Unencumbered Asset Value, and (b) updated Schedule 3.05 of all Unencumbered Properties. From and after the date of delivery of such certificate and schedule and so long as such Real Estate Asset continues to satisfy the eligibility criteria set forth in the definition of Unencumbered Property, such Real Estate Asset shall be treated as a Unencumbered Property hereunder."
"SECTION 5.12. Releases of the Guaranty. At such time as the Loans and the other Obligations shall have been paid in full and the Commitments have been terminated, the Guarantor shall be released from its obligations under the Guaranty (other than those expressly stated to survive such termination), all without delivery of any instrument or performance of any act by any Person and the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 9.02) to take any action requested by the Borrowers having the effect of releasing any guarantee obligations under the Guaranty."
"SECTION 6.04. Swap Agreements. The Company will not, and will not permit any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in respect of Equity Interests of the Company or any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest- bearing liability or investment of the Company or any Subsidiary."
"(i) the Company, a Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company, a Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;"
"then, and in every such event (other than an event with respect to a Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times: terminate"
"litigation, investigation or proceeding is brought by the Company, its Affiliates, its creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim."
"SECTION 9.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted such assignment or transfer by a Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors"
"(a) The representations and warranties of the Borrowers set forth in the Loan Agreement are true and correct in all material respects (other than any representation or warranty qualified as to materiality, Material Adverse Effect or similar language, which shall be true and correct in all respects) on and as of the Borrowing Date (except to the extent that any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty is true and correct as of such earlier date); and"
"Authorized Officer means, with respect to any Person, any officer of such Person or of its agent (acting pursuant to a power of attorney) who is authorized to act for such Person and who is identified on the list of Authorized Officers delivered by such Person to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) on the Closing Date, as such list may be modified or supplemented at any time and from time to time by such Person."
"Backup Servicer means WTNA, as initial Backup Servicer, or any other Person appointed as Backup Servicer by the Borrower with the prior written consent of the Administrative Agent; provided, that, unless the context requires otherwise, all references herein to the Backup Servicer shall also include First Associates Loan Servicing, LLC, the sub-backup servicer at the Closing Date, and if a successor sub-backup servicer is appointed after the Closing Date, with the prior written consent of the Administrative Agent, such successor sub-backup servicer."
"Collateral Control Agreement means either (i) the Electronic Collateral Control Agreement dated on or about the date hereof among the Custodian, the Borrower, the Collateral Trustee and the Administrative Agent, or (ii) any replacement Collateral Control Agreement with a successor Custodian, subject to the satisfaction of the terms set forth in the proviso to the definition of Custodian herein set forth."
"Conduit Lender means any financial institution identified as such on Schedule I and any other commercial paper conduit that has become a party hereto as a Conduit Lender pursuant to an Assignment and Assumption Agreement, other than any such Person that ceases to be a Conduit Lender hereunder pursuant to the full assignment of its Loan Amount and its rights and interests hereunder pursuant to one or more Assignment and Assumption Agreements."
"Originator means WebBank, an FDIC-insured Utah-chartered industrial bank, or such other originating bank selected by the Seller and approved in writing by the Administrative Agent, which approval shall not be unreasonably withheld; provided, that if the Seller is acquiring Receivables from more than one originating bank, all references in this Agreement and any other Transaction Document to the Originator shall be deemed to be a separate reference to each such originating bank; provided, further, that approval of any proposed new originating bank (including, without limitation, any such proposed originating bank that is a state-chartered bank that is not FDIC-insured), may be conditioned on such representations, legal opinions and other terms and conditions as may be required by the Administrative Agent or any rating agency rating the commercial paper of any Conduit Lender."
"(g) Amendments, Supplements and Modifications; Successors and Assigns. Any agreement, instrument or document defined or referred to herein or in any instrument, certificate or document delivered in connection herewith means such agreement, instrument or document as the same may from time to time be amended, modified or supplemented in accordance with the terms thereof and includes references to all attachments, schedules and exhibits associated therewith; all references to a Person include its permitted successors and assigns."
"SECTION 2.11 Syndication. If at any time (i) no Event of Default has occurred and is continuing hereunder, and (ii) any Lender intends to assign its Commitment and/or Loan to any assignee that is not a [***]* Person (other than an assignment pursuant to Section 9.03(d)), the Administrative Agent shall provide the Borrower with at least five Business Days prior written notice thereof and the Administrative Agent and the Borrower shall work together in good faith to amend this Agreement in order to add provisions with respect to defaulting Lenders that are reasonably acceptable to the Administrative Agent and the Borrower, or, if no agreement is reached in such 5 Business Day period, then the LSTA form provisions shall be added at such time (the LSTA Modified Terms); provided, notwithstanding any other requirement set forth herein for an amendment to be effective, an amendment pursuant to this Section 2.11 shall be effective upon either (A) mutual written agreement of the Borrower and the Administrative Agent; or (B) a writing signed by the Administrative Agent only in accordance with this subsection setting forth the LSTA Modified Terms that shall become part hereof; provided, however that, if in the reasonable judgment of the Administrative Agent, the rights, duties, immunities or liabilities of the Paying Agent or the Collateral Trustee would be adversely affected thereby, such affected Agents consent shall be required; and provided, further that if, in the judgment of the Paying Agent or the Collateral Trustee, the rights, duties, immunities or liabilities of such Agent would be adversely affected thereby, then such amendment shall not be effective against such Agent until such Agent has given its written consent thereto."
"(c) Business Day. Except as otherwise expressly provided herein, whenever any payment shall become due or is required to be made on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest, if applicable."
"(a) Collection Account and Reserve Account. On or prior to the Closing Date, the Borrower shall establish two separate segregated trust accounts (that constitute deposit accounts for purposes of the UCC), each in the name of the Borrower at the Account Bank, which shall be identified by account number in the Account Control Agreement as the Collection Account (the Collection Account) and the Reserve Account (the Reserve Account). Each of the Collection Account and the Reserve Account shall be in the sole control (within the meaning of the UCC) of the Collateral Trustee, for the benefit of the Secured Parties. The Borrower shall continue to maintain the Collection Account until the Commitments have been terminated and all Obligations (other than contingent obligations as to which no claims have been asserted) have been indefeasibly paid in full (Payment in Full). The Borrower shall continue to maintain the Reserve Account until the Reserve Account Termination Date. The Account Bank shall take directions with respect to the Collection Account and the Reserve Account solely from the Collateral Trustee (and the Collateral Trustee hereby agrees to act with respect thereto at the direction of the Administrative Agent); provided, that the Account Bank shall follow the standing instructions expressly set forth in the Account Control Agreement with respect to transfers and distributions to be made by the Paying Agent in accordance herewith (which shall be based made based upon such certificates, notices or other documentation expressly set forth herein as the basis for making any such transfer or distribution hereunder). The Collection Account and the Reserve Account shall be subject at all times (with respect to the Collection Account) or until the Reserve Account Termination Date (with respect to the Reserve Account) to a first-priority perfected security interest in favor of the Collateral Trustee, for the benefit of the Secured Parties, and each such account shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Trustee on behalf of the Secured Parties."
"(e) No Violation. The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which the Borrower is a party and compliance with the terms of this Agreement and the other Transaction Documents to which the Borrower is a party do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice, lapse of time or both) a default under the Borrower Organizational Documents, or any material indenture, agreement, mortgage, deed of trust or other instrument to which the Borrower is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of the properties of the Borrower pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than the Permitted Liens) or, except as could not reasonably be expected to result in a Material Adverse Change, violate any applicable law, order, rule, regulation, ordinance or directive of any Governmental Authority, of any court, or of any federal or State regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Borrower or any of its properties."
"(v) Compliance with Anti-Money Laundering Laws. The operations of the Borrower and each other LC Group Member are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act of 1970, as amended by Title III of the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT Act), the applicable money laundering statutes of all jurisdictions where the Borrower or any other LC Group Member conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the Anti-Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Borrower or any other LC Group Member with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Borrower or any such other LC Group Member, threatened."
"(i) certified copies of the organizational documents of the Borrower and LendingClub and each amendment thereto, and resolutions of the Board of Directors or other governing authority of each of the Borrower and LendingClub authorizing or ratifying (A) the execution, delivery and performance, respectively, of all Transaction Documents to which it is a party and consummation of the transactions contemplated hereby and thereby, (B) in the case of the Borrower only, the incurrence of the indebtedness contemplated hereunder, and (C) in the case of the Borrower only, the granting by the Borrower to the Collateral Trustee, for the benefit of the Secured Parties, of the security interests contemplated by the Security Agreement, certified by the Secretary or an Assistant Secretary of the Borrower or LendingClub, as applicable, as of the Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;"
"(iii) a legal opinion from counsel to the Borrower and Seller, opining that the Receivables Purchase Agreement (A) constitutes a true sale or transfer from the Seller to the Borrower and the Purchased Receivables transferred thereunder will not be subject to the bankruptcy estate of the Seller, and (B) nonconsolidation of the Seller and Borrower in event of bankruptcy; and"
"(b) Taxes. The Borrower shall, and shall cause LendingClub to, pay and discharge all material Taxes and governmental charges upon it or against any of its properties or assets or its income prior to the date after which penalties attach for failure to pay, except to the extent that (i) the Borrower or LendingClub, as applicable, shall be contesting in good faith in appropriate proceedings its obligation to pay such Taxes or charges, (ii) adequate reserves have been set aside for the payment thereof in accordance with GAAP, and (iii) such failure to pay could not give rise to a tax Lien on any Collateral (other than Liens described in clause (iii) in the definition of Permitted Liens). The Borrower shall at all times be a disregarded entity for federal income tax purposes that is wholly owned by a United States person within the meaning of Section 7701(a)(30) of the Code and no election will be made to treat the Borrower as a corporation or an association taxable as a corporation for federal income tax purposes."
"(j) Compliance with Laws. The Borrower shall, and shall cause LendingClub to, (i) comply with all applicable Requirements of Law, and (ii) comply with any order of any applicable Governmental Authority or other board or tribunal, in each case, except where noncompliance could not reasonably be expected to result in a Material Adverse Change."
"(o) AUP Engagements. The Administrative Agent shall receive an AUP Letter within six months after the Closing Date and at least annually thereafter, in each case, in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower shall, and shall cause the Seller and the Servicer to, authorize and cooperate fully and on a timely basis with the initial and annual compliance engagement conducted in connection therewith."
"(xvii) there shall be any amendment, modification, supplement, termination or change to the Credit and Collection Policy, Underwriting Policy or Originator Program Documents without the consent of the Administrative Agent that would be prohibited to be made by the Borrower, Seller or Servicer without the consent of the Administrative Agent pursuant to Section 6.02(f) but that the Originator is able to implement on a unilateral basis or that was implemented in order to comply with any applicable Requirements of Law."
"(e) Delegation. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it and no Agent shall be responsible for the misconduct or negligence of, or the supervision of, any sub-agents appointed in a commercially reasonable manner and with due care. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective employees, officers, directors, consultants, or other representatives or agents, and the exculpatory provisions set forth herein shall apply to equally to all of the foregoing Persons."
"SECTION 8.03 Multiple Roles. It is expressly acknowledged, agreed and consented to that WTNA will be acting in the capacities of Collateral Trustee, Paying Agent and Account Bank. WTNA may, in such multiple capacities, discharge its separate functions fully, without hindrance or regard to conflict of interest principles, duty of loyalty principles or other breach of fiduciary duties to the extent that any such conflict or breach arises from the performance by WTNA of express duties set forth in the Agreement or any other Transaction Document in any of such capacities, all of which defenses, claims or assertions are hereby expressly waived by the parties hereto and any other Person having rights pursuant hereto or thereto. The rights, privileges, protections, immunities, indemnities and benefits afforded to the Collateral Trustee, Account Bank and Paying Agent under this Agreement are extended to, and shall be enforceable by, the Collateral Trustee, Account Bank and Paying Agent in each Transaction Document to which it is a party or otherwise subject, whether or not specifically set forth therein, and each entity serving as the Collateral Trustee, Account Bank and Paying Agent in each of its capacities hereunder and under any other Transaction Document and each agent, custodian and other Person employed to act by the Collateral Trustee, Account Bank and Paying Agent hereunder and under any other Transaction Document, whether or not such rights, privileges, protections, immunities, indemnities or benefits are specifically set forth herein or in any other Transaction Document, as the case may be, together with such other rights, privileges, protections, immunities, indemnities and benefits afforded to the applicable party hereunder or under any other Transaction Document."
"SECTION 8.05 Limitation on Claims Against Conduit Lenders. Notwithstanding anything to the contrary set forth herein or in any other Transaction Document, no Conduit Lender shall have any obligation to pay any amount required to be paid by it under this Agreement or any other Transaction Document in excess of any amount available to such Conduit Lender after paying or making provision for the payment of its commercial paper notes. Each party hereto hereby agrees that it will not have a claim under Section 101(5) of the Bankruptcy Code if and to the extent that any such payment obligation owed to it by a Conduit Lender exceeds the amount available to such Conduit Lender to pay such amount after paying or making provision for the payment of its commercial paper notes."
"(c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the Servicer, or the performance or observance by either such party (or any other Person) of any of its respective obligations under the Credit Agreement, any other Transaction Document, or any other instrument or document furnished pursuant thereto."
"Attributable Indebtedness means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person."
"Consolidated Fixed Charge Coverage Ratio means the ratio, determined on a consolidated basis for Newpark and its Subsidiaries for the most recent Measurement Period of (a) Consolidated EBITDA minus Capital Expenditures (except those financed with borrowed money other than Revolver Loans) and cash taxes paid plus cash tax refunds to the extent such tax refunds are not used to redeem or repurchase the 2021 Convertible Notes, to (b) Consolidated Fixed Charges."
"Disposition or Dispose means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith."
"Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Newpark or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing."
"(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (LIBOR) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and"
"Immaterial Domestic Subsidiary means shall mean any Domestic Subsidiary that (i) does not own any Collateral, (ii) does not guaranty any obligations with respect to the 2021 Convertible Notes, (iii) generates less than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of Newpark are available, and (iv) owns net assets that have an aggregate fair market value of less than 5.0% of Consolidated Tangible Assets of Newpark as of the end of the fiscal quarter most recently ended; provided that if any two or more Domestic Subsidiaries generate more than 10% of Consolidated EBITDA in the aggregate for any such Measurement Period, then one or more of such Domestic Subsidiaries will be deemed not to qualify as an Immaterial Domestic Subsidiary during such Measurement Period in order to prevent the foregoing 10% limitation from being exceeded."
"(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Loan Party or Subsidiary valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and"
"For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date."
"Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing)."
"Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06(b))."
"Qualified ECP Guarantor means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an eligible contract participant under the Commodity Exchange Act and can cause another Person to qualify as an eligible contract participant at such time under Section 1a(18)(A)(v)(ii) of the Commodity Exchange Act."
"Rent and Charges Reserve means the aggregate of (a) all past due rent and other amounts owing by a Borrower to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve at least equal to three months rent and other charges that could be payable to any such Person, unless it has executed a Lien Waiver. Rent payable under Capitalized Leases will not be included in the Rent and Charges Reserve."
"Secured Bank Product Obligations means all debt, obligations and other liabilities owing under Secured Cash Management Agreements and Secured Hedge Agreements; provided that Secured Bank Product Obligations of a Loan Party shall not include the Excluded Swap Obligations of such Loan Party or any obligations of such Loan Party with respect to any leases that may constitute Bank Products."
"Solvent and Solvency mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Persons ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Persons property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability."
"Subsidiary of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified,"
"Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender)."
"Synthetic Lease means (a) a so-called synthetic, off-balance sheet or tax retention lease and (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment)."
"(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Newpark or the Required Lenders shall so request, the Administrative Agent, the Lenders and Newpark shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders, which approval the Required Lenders agree not to unreasonably withhold or delay); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Newpark shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto,"
"1.04 Rounding. Any financial ratios required to be maintained by Newpark pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number)."
"(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Newpark delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of Newpark. Such Letter of Credit Application may be sent by fax transmission, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 10:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the applicable L/C Issuer may reasonably require. In the case of"
"a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may require. Additionally, Newpark shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require."
"(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lenders payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its"
"Newpark shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Newparks instructions or other irregularity, Newpark will immediately notify the applicable L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid."
"be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Each L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (SWIFT) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary."
"(h) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance, subject to Section 2.16, with its Applicable Percentage a Letter of Credit fee (the Letter of Credit Fee) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first day of each month, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a monthly basis in arrears. If there is any change in the Applicable Rate during any month, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such month that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate."
"Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. The applicable Swing Line Lender shall furnish Newpark with a copy of the applicable Revolving Credit Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Revolving Credit Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the applicable Swing Line Lender at the Administrative Agents Office not later than 12:00 noon on the day specified in such Revolving Credit Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable Swing Line Lender."
"(ii) The Borrowers may, upon notice to the applicable Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the applicable Swing Line Lender and the Administrative Agent not later than 12:00 noon on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of principal shall be accompanied by all accrued interest on the amount prepaid."
"(c) Dominion Account. During any Cash Dominion Trigger Period, the ledger balance in each Dominion Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. If a credit balance results from such application, it shall not accrue interest in favor of the Borrowers and shall be made available to the Borrowers as long as no Default or Event of Default exists. At all times when a Cash Dominion Trigger Period is not in effect, the Borrowers shall have unrestricted access to amounts in Deposit Accounts."
"(ii) If any amount (other than principal of any Loan) payable by the Borrowers under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws."
"(a) Commitment Fee. The Borrowers jointly and severally shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Fee Rate times the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.16. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the first day of each April, July, October and January, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Fee Rate separately for each period during such quarter that such Applicable Fee Rate was in effect."
"Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation."
"notice or communication (including any notice of borrowing) delivered by Newpark on behalf of any Borrower. The Administrative Agent and the Lenders may give any notice or communication with a Loan Party hereunder to Newpark on behalf of such Loan Party. Each of Administrative Agent, L/C Issuer and Lenders shall have the right, in its discretion, to deal exclusively with Newpark for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Newpark shall be binding upon and enforceable against it."
"(iii) Section 2.18(c)(i) shall not limit the liability of any Borrower to pay or guarantee Loans made directly or indirectly to it (including Loans advanced hereunder to any other Person and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), L/C Obligations relating to Letters of Credit issued to support its business, Secured Bank Product Obligations incurred to support its business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder. The Administrative Agent and the Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of Loans and Letters of Credit to a Borrower based on that calculation."
"(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or (b) above, the Borrowers shall, and do hereby, jointly and severally indemnify each Recipient and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrowers or the Administrative Agent or paid by the applicable Recipient and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrowers shall also, and do hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or an L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to the amount of any such payment or liability delivered to Newpark by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error."
"(g) FATCA Grandfathering. For purposes of determining U.S. withholding Taxes imposed under FATCA, from and after the date of this Agreement, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a grandfathered obligation within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)."
"(ii) subject any Recipient to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Recipient in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Taxes described in clauses (a) or (b) of the definition of Excluded Tax payable by such Recipient); or"
"(viii) favorable opinions of (A) Mark Airola, Esq., Newparks General Counsel as to corporate matters in respect of the Borrowers other than Dura-Base, (B) Andrews Kurth LLP, counsel to the Borrowers, and (C) local Nevada counsel to Dura-Base as to corporate matters in respect of Dura-Base, each addressed to the Administrative Agent and each Lender, as to the matters concerning the Borrowers and the Loan Documents as the Required Lenders may reasonably request;"
"(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as lender loss payee, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and"
"4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Revolving Credit Loan Notice requesting only a conversion of Revolving Credit Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:"
Each Request for Credit Extension (other than a Revolving Credit Loan Notice requesting only a conversion of Revolving Credit Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by Newpark shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
"5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Persons Organization Documents; (b) conflict with or result in any breach or contravention of under, or require any payment to be made under any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, except for conflicts, breaches or contraventions that could not reasonably be expected to result in a Material Adverse Effect, (c) violate any Law or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (d) result in the creation or imposition of any Lien on any property of Newpark or any Subsidiary except Liens created under the Loan Documents."
"5.09 Environmental Compliance. (a) Newpark and the other Loan Parties have conducted in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrowers have reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"5.11 Taxes. Newpark and its Subsidiaries have filed all federal, state and other material Tax returns and reports required to be filed, and have paid all federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax assessment against Newpark or any Subsidiary that would, if made, have a Material Adverse Effect. Neither Newpark nor any Subsidiary is party to any Tax sharing agreement."
"5.22 Sanctions Concerns. Newpark, nor any Subsidiary, nor, to the knowledge of the Borrowers and their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is, (a) currently the subject or target of any Sanctions or (b) located, organized or resident in a Designated Jurisdiction. Each Borrower has implemented and maintains in effect policies and procedures reasonably intended to procure compliance by such Borrower, its Subsidiaries and their respective directors, officers, employees and agents with anti-corruption laws and applicable Sanctions, and each Borrower, its Subsidiaries and to the knowledge of each Borrower, their respective officers, employees, directors and agents, are in compliance in all material respects with anti-corruption laws and Sanctions respectively applicable to such Borrower, each of its Subsidiaries and their respective officers, employees, directors and agents."
"As to any information contained in materials furnished pursuant to Section 6.02(d), Newpark shall not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing shall not be in derogation of the obligation of Newpark to furnish the information and materials described in Sections 6.01(a) or (b) above at the times specified therein."
"6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect Newparks and the other Material Loan Parties legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or Section 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve"
"(i) within 30 days after such formation or acquisition or ceasing to be an Immaterial Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), cause such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent either a joinder to become a Borrower party to this Agreement or a Guaranty, each in form and substance satisfactory to the Administrative Agent,"
"(ii) within 30 days after such formation or acquisition or ceasing to be an Immaterial Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a Security Agreement Supplement, IP Security Agreement Supplements and other security and pledge agreements, as specified by and in form and substance satisfactory to the Administrative Agent (including delivery of all Pledged Interests in and of such Subsidiary, and other instruments of the type specified in Section 4.01(a)(iv)), securing payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such property (other than Excluded Properties) purported to be subject to such Collateral Document,"
"(iii) within 30 days after such formation or acquisition or ceasing to be an Immaterial Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to take whatever action (including the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Security Agreement Supplement, IP Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, and"
6.18 Bank Products. Continue to maintain Bank of America as the Borrowers principal concentration and disbursement bank in connection with domestic Treasury Management Services provided that Bank of America is capable of satisfying the technical requirements of the Borrowers and that Bank of America offers competitive pricing to the Borrowers for such Treasury Management Services.
"(h) judgment and attachment Liens not giving rise to an Event of Default under Section 8.01(h), provided that any appropriate legal proceedings which may have been duly initiated for the appeal or other review of such judgment shall not have been finally terminated or the period within which such proceeding may be initiated shall not have expired and no action to enforce such Lien has been commenced;"
"(j) other Investments not exceeding (i) $10,000,000 in the aggregate in any fiscal year of Newpark and (ii) $50,000,000 in the aggregate following the Closing Date, provided that Liquidity is greater than $70,000,000 as of the date of each such Investment after giving effect on a pro forma basis to the Investment then being made."
"7.05 Dispositions. Make any Disposition of any of its property whether now owned or hereafter acquired (other than treasury stock of Newpark (i) issued pursuant to any employee or director benefit plan approved by the shareholders of Newpark or (ii) to the extent Regulation U would be violated by restrictions under this Section 7.05) or, in the case of any Subsidiary, issue or sell any shares of such Subsidiarys Equity Interests to any Person, except:"
"7.06 Restricted Payments. Declare or pay any Restricted Payment except that (a) Newpark may declare, pay, make or otherwise effect or undertake any one or more Restricted Payments provided that at the time of and after giving effect to such Restricted Payment, (i) the Consolidated Fixed Charge Coverage Ratio on a pro forma basis is not less than 1.15 to 1.00 as of the last day of the immediately preceding Measurement Period, (ii) no Default or Event of Default has occurred and is continuing or would result from such Restricted Payment, and (iii) Newpark shall have aggregate Availability on a pro forma basis not less than 30% of the Aggregate Commitments for the 30 days immediately preceding such Restricted Payment and immediately after giving effect to such Restricted Payment; (b) each Subsidiary may make Restricted Payments to a Borrower and any Subsidiary that is not a Loan Party may make Restricted Payments to Newpark or any Subsidiary; (c) the Borrowers and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (d) the Borrowers and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new"
"(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;"
"(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under"
"9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying upon and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of"
"9.09 Administrative Agent May File Proofs of Claim; Credit Bidding. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:"
"9.11 Secured Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, a Guaranty or any Collateral by virtue of the provisions hereof, of the Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank,"
"10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:"
"(f) change any provision of this Section 10.01 or the definition of Required Lenders or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;"
"10.02 Notices; Effectiveness; Electronic Communications. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by"
"(A) the consent of Newpark (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund provided that Newpark shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;"
"(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire."
"(c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT."
"10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and acknowledges its Affiliates understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent, any Affiliate thereof, the Arrangers and the Lenders are arms-length commercial transactions between the Borrowers, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and, as applicable, its Affiliates, the Arrangers and the Lenders and their Affiliates (collectively, solely for purposes of this Section, the Lenders), on the other hand, (ii) each of the Borrowers and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each of the Borrowers and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent, its Affiliates, the Arrangers and each Lender each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be"
"Entities, or (c)derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Loan Parties and its Subsidiaries, and to the knowledge of each such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws in all material respects. No proceeds of any Credit Extension made or Letter of Credit issued hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any applicable Sanctions, Anti- Corruption Laws or Anti-Money Laundering Laws by any Person (including any Credit Party or other individual or entity participating in any transaction)."
" | c. | Section6.10(b) is hereby amended by deleting the proviso in the second sentence thereof and by substituting the following in its stead: ---|---|--- provided that, if Adjusted Availability is at any time less than twenty (20%)of the Borrowing Base, the Loan Parties shall pay the fees and expenses of the Administrative Agent and such professionals with respect to two (2)appraisals of the Loan Parties Inventory and two (2)commercial finance examinations during such Fiscal Year."
" | d. | The Agent shall have received satisfactory opinion of Irell and Manella LLP and of Kaufman& Canoles, P.C., local Virginia counsel for Big 5 Services Corp., in each case, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment as the Agent may reasonably request (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of this Amendment); ---|---|--- "
" | h. | The Borrowers shall have (i)paid all fees then due to the Agent, Arranger and the Lenders, (ii)reimbursed the Agent for all costs and expenses, including, without limitation, for any Credit Party Expenses, and (iii)shall have paid all fees in accordance with the terms of the Third Amendment Fee Letter; and ---|---|--- "
"|  |  | | | |  | (b) |  | Consolidated Interest Charges for such period: |  | | | | |  | (c) |  | the provision for Federal, state, local and foreign income Taxes: |  |  | | | |  | (d) |  | depreciation and amortization expense: |  | | | | |  | (e) |  | other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Parent and its Subsidiaries for such Measurement Period): |  |  | | | |  | |  | Minus the following, to the extent included in Consolidated Net Income for such period: |  | | | | |  | (f) |  | Federal, state, local and foreign income tax credits: |  |  | | | |  | (g) |  | all non-cash items increasing Consolidated Net Income (in each case of or by the Parent and its Subsidiaries for such Measurement Period): |  |  | | | |  | (h) |  | Consolidated EBITDA [Line 1(a), plus the sum of Lines 1(b) through 1(e), minus the sum of Lines 1(f) through 1(g)]: |  | | | 2. |  | Minus the following: |  | | | | |  | (a) |  | Maintenance Capital Expenditures made during such period: | |  | | | |  | (b) |  | the aggregate amount of Federal, state, local and foreign income taxes paid in cash during such period: |  | Exhibit A to Third Amendment to Credit Agreement"
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"Any increase or decrease in the Applicable Rate resulting from a change in the First Lien Leverage Ratio shall become effective as of the third Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section6.02(a); provided, however, that Pricing Level 1 shall apply (x)as of the first Business Day at any time after the date on which a Compliance Certificate was required to have been delivered but was not delivered (or was delivered but did not contain the calculations of the First Lien Leverage Ratio) until the first Business Day immediately following the date on which such Compliance Certificate (which includes calculations of the First Lien Leverage Ratio) is delivered and (y)at all times during the existence of an Event of Default."
"Base Rate means for any day a fluctuating rate per annum equal to the highest of (a)the Federal Funds Rate plus 1/2 of 1%, (b)the Prime Rate and (c)the one-month Eurocurrency Rate (after giving effect to any applicable floor) plus 1%; provided that, for the avoidance of doubt, the Eurocurrency Rate for any day shall be based on the rate determined on such day at approximately 11:00 a.m.(London Time) by reference to the British Bankers Association (or any successor thereto) Interest Settlement Rates for deposits in Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers Association (or any successor thereto) as an authorized vendor for the purpose of displaying such rates). Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Rate, as the case may be."
"(d) marketable short-term money market and similar funds (including such funds investing a portion of their assets in municipal securities) having a rating of at least P-1 or A-1 from either Moodys or S&P, respectively (or, if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower);"
"Cash Management Agreement means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer, as well as Cash Management LC Agreements, and other cash management arrangements permitted under ArticleVII that is entered into by and between the Borrower or any of its Restricted Subsidiaries and any Cash Management Bank; provided that the aggregate amount of Cash Management Agreements entered into by Restricted Subsidiaries that are not Loan Parties shall not exceed $35,000,000 at any time outstanding."
"Class means (a)with respect to Lenders, each of the following classes of Lenders: (i)Lenders holding Term Loans, (ii)Lenders having Revolving Credit Commitments and (iii)Lenders holding an Incremental First Lien Term Loan Tranche, and (b)with respect to Loans, each of the following classes of Loans: (i)Term Loans, (ii)Revolving Credit Loans and (iii)Incremental First Lien Term Loans of any Incremental First Lien Term Loan Tranche. For the avoidance of doubt, any Loans or Commitments created pursuant to a Permitted Amendment shall constitute a separate Class."
"of terrorism or any weather or health/epidemic related or other force majeure event or natural disaster or the worsening thereof; (E)any change in applicable Laws or applicable accounting principles or, in each case, in the interpretation or enforcement thereof after the date hereof; (F)general conditions in or of the industries in which the Business operates; (G)any change, event, occurrence, development, effect, condition, circumstance or matter that is cured by Seller or its Affiliates to the reasonable satisfaction of Purchaser (including by the payment of money); (H)any failure to meet any internal or external projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position (except that the underlying cause of any such failure may be considered and taken into account in determining whether there has been or would reasonably be likely to be a Material Adverse Effect); (I)any action taken or not taken by Seller or its Affiliates at Purchasers written request; or (J)any reconciliation of IFRS to generally accepted accounting principles or vice versa; provided, however, that any change, event, occurrence, development, effect, condition, circumstance or matter described in clauses (B), (C), (D), (E)or (F)above shall not be excluded to the extent such matters disproportionately affect the Business, taken as a whole, as compared to other similarly situated Persons in the water and waste water treatment industry (it being understood and agreed for the avoidance of doubt that only the extent of such disproportionate affect shall not be so excluded). Capitalized terms used above in the definition of Closing Material Adverse Effect without definition shall have the meanings assigned to them in the Acquisition Agreement."
"(v) any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interests of Holdings (other than Disqualified Equity Interests),"
"(v) the amount of Restricted Payments permitted under Sections 7.06(e)(i), 7.06(e)(ii), 7.06(e)(iii), 7.06(e)(vii)and 7.06(i)(except to the extent that (x)the amount paid with such Restricted Payments would not, if the respective expense or other item had been incurred directly by the Borrower, have reduced Consolidated EBITDA determined in accordance with this definition or (y)such Restricted Payment is paid by the Borrower in respect of an expense or other item that has resulted in, or will result in, a reduction of Consolidated EBITDA, as calculated pursuant to this definition), plusorminus"
"(ii) cash (other than, on or prior to the second anniversary of the Closing Date, Ringfenced Cash) and Cash Equivalents restricted in favor of, without duplication, the Administrative Agent, the Collateral Agent, the Second Lien Administrative Agent, the Second Lien Collateral Agent, any Lender or any Second Lien Lender) of the Borrower and its Restricted Subsidiaries on the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section6.01(a)or (b)to (y)Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended four (4)consecutive fiscal quarter period ending on or prior to such date for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Sections 6.01(a)and (b)."
"Interest Period means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, or to the extent consented to by all Appropriate Lenders, twelve months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:"
"Lien means any mortgage, lease, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing)."
Pension Plan means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by a Loan Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section412 or 430 of the Code or Section302 or 303 of ERISA.
"Secured Hedge Agreement means any Swap Contract permitted under ArticleVII that is entered into by and between any Loan Party and any Hedge Bank and for which (a)written notice substantially in the form of ExhibitO has been delivered by the Loan Party or the Hedge Bank to the Administrative Agent and the Collateral Agent, which (i)specifies that such Swap Contract is a Secured Hedge Agreement, and (ii)acknowledges and accepts Hedge Banks appointment of the Administrative Agent and the Collateral Agent pursuant to the terms of ArticleIX for itself and its Affiliates as if a Lender party hereto, and (b)the Loan Party and/or Hedge Bank provides to the Administrative Agent and the Collateral Agent such supporting documentation as the Administrative Agent or the Collateral Agent may reasonably request."
"Specified Refinancing Debt means Indebtedness (or unfunded commitments in respect thereof) that is either unsecured or secured by Specified Refinancing Liens, provided that: (A)an amount equal to the principal amount of such Indebtedness (or unfunded commitments in respect thereof) is applied concurrently with the incurrence thereof to prepay the Loans pursuant to Section2.05(b)(iii)or any previously incurred Specified Refinancing Debt (or, in the case of unfunded commitments, to permanently reduce the commitments under the Revolving Credit Facility); (B)the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date of all Classes of Commitments and Loans then in effect (other than customary offers to repurchase or mandatory prepayments upon a change of control, asset sale or event of loss, customary acceleration rights after an event of default and, with respect to such Indebtedness incurred in the form of loans, customary amortization payments, subject to clause (C)below); (C)the maturity date of such Indebtedness shall not be shorter than the Latest Maturity Date of all Classes of Commitments and Loans then in effect and, with respect to such Indebtedness incurred in the form of loans, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans; (D)the covenants, events of default, Guarantees, collateral and other terms of such Indebtedness, when taken as a whole, are not more restrictive to Holdings, the Borrower and its Restricted Subsidiaries than those set forth in this Agreement (provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5)Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (D), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of its objection during such five (5)Business Day period); (E)immediately before and immediately after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing; (F)there shall be no borrowers or guarantors in respect of such Indebtedness that are not the Borrower or a Guarantor, and the borrower with respect to such Indebtedness shall be the borrower of the Indebtedness being refinanced; (G)if secured, such Indebtedness shall not be secured by any assets that do not constitute Collateral; and (H)the terms relating to the holding of loans under such Indebtedness by an Affiliated Lender shall be no less restrictive to such Affiliated Lender than those in Sections 10.01 and 10.07."
"Specified Refinancing Liens means Liens on the Collateral securing Specified Refinancing Debt on a junior basis to, or a pari passu basis with, the Liens securing the First Lien Obligations, provided that such Liens are granted under security documents to a collateral agent for the benefit of the holders of such Specified Refinancing Debt that are not more restrictive to Holdings, the Borrower and its Restricted Subsidiaries than the Collateral Documents (provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5)Business Days prior to the incurrence of such Specified Refinancing Debt, together with a reasonably detailed description of the"
"(c) Notwithstanding anything to the contrary in this Section1.03, (i)with respect to any time period beginning on the Closing Date and ending on the Business Day that immediately follows the date on which a Compliance Certificate is delivered pursuant to Section6.02(a)in respect of the first fiscal year of the Borrower ending after the Closing Date, references to GAAP in this Agreement shall be deemed to mean IFRS (unless the Borrower elects that such references to GAAP shall be deemed to mean GAAP) and (ii)any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capitalized Lease or Attributable Indebtedness on a balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capitalized Lease or Attributable Indebtedness as a result of the adoption of changes in GAAP or changes in the application of GAAP."
"1.05 References to Agreements and Laws. Unless otherwise expressly provided herein, (a)references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b)references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law."
"(f) For the avoidance of doubt, in the case of a Revolving Credit Loan denominated in Euro, Sterling or an Alternative Currency, except as expressly provided herein, (i)all interest and fees shall accrue and be payable thereon based on the actual amount outstanding in Euro, Sterling or such Alternative Currency (without any translation into the Dollar Equivalent thereof), (ii)all interest shall be payable in Euro, Sterling or such Alternative Currency, as applicable and (iii)all fees shall be payable in Dollars."
"1.12 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class(e.g., a Revolving Credit Loan) or by Type (e.g., a Eurocurrency Rate Loan) or by Classand Type (e.g., a Eurocurrency Revolving Credit Loan). Borrowings also may be classified and referred to by Class(e.g., a Revolving Credit Borrowing) or by Type (e.g., a Eurocurrency Borrowing) or by Classand Type (e.g., a Eurocurrency Revolving Credit Borrowing)."
"(B) subject to Section2.03(b)(iii), the expiry date of such requested Letter of Credit (other than a Letter of Credit in the form of a financial accommodation, which may have a longer expiry date as agreed by the applicable L/C Issuer and, if such longer expiry date is after the Maturity Date with respect"
"(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B)the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit."
"(v) Each Revolving Credit Lenders obligation to make Revolving Credit Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A)any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B)the occurrence or continuance of a Default or an Event of Default, or (C)any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Credit Lenders obligation to make Revolving Credit Loans pursuant to this Section2.03(c)is subject to the conditions set forth in Section4.02 (other than delivery by the Borrower of a Committed Loan Notice ). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the applicable L/C Issuer under any Letter of Credit, together with interest as provided herein."
"(A) Notwithstanding anything to the contrary herein, any Borrower Purchasing Party shall have the right at any time and from time to time to prepay any Classof Term Loans at a discount to the par value of such Loans and on a non pro rata basis (each, a Discounted Voluntary Prepayment) without premium or penalty (but subject to Section3.05) pursuant to the procedures described in this Section2.05(a)(iii), provided that, on the date of any such Discounted Voluntary Prepayment, such Borrower Purchasing Party shall deliver to the Administrative Agent a certificate of a Responsible Officer stating (1)that no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment (after giving effect to any related waivers or amendments obtained in connection with such Discounted Voluntary Prepayment), (2)that each of the conditions to such Discounted Voluntary Prepayment contained in this Section2.05(a)(iii)has been satisfied, (3)the aggregate principal amount of Term Loans so prepaid pursuant to such Discounted Voluntary Prepayment, (4)such Borrower Purchasing Party shall not use the proceeds of any Credit Extension under the Revolving Credit Facility to acquire such Term Loans and (5)that such Borrower Purchasing Party does not have any material non-public information with respect to Holdings, the Borrower, or any of its Subsidiaries or any of their respective securities that either (A)has not been disclosed to the Lenders (other than Lenders that do not wish to receive such information) or has not otherwise been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD, prior to such time or (B)if not disclosed to the Lenders, could reasonably be expected to have a material effect upon, or otherwise be material to, Holdings, the Borrower and the Restricted Subsidiaries."
"(b) Incremental First Lien Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Incremental First Lien Lenders the aggregate principal amount of all Incremental First Lien Term Loans outstanding of each Incremental First Lien Term Loan Tranche in such installments as set forth in the Incremental First Lien Commitments Amendment with respect to such Incremental First Lien Term Loan Tranche (which installments shall, to the extent applicable, be reduced as a"
"(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section2.12(a), bear interest for one (1)day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error."
"Obligations shall be incurred solely pursuant to clause (A). Any loans made in respect of any Revolving Credit Commitment Increase shall be made by increasing the aggregate Revolving Credit Commitments with the same terms (including pricing) as the existing Revolving Credit Loans. Any loans made in respect of any such Incremental First Lien Term Commitments (the Incremental First Lien Term Loans and, together with any Revolving Credit Commitment Increase, the Incremental First Lien Facilities) may be made, at the option of the Borrower, by either (i)increasing the Term Commitments with the same terms (including pricing) as the existing Term Loans, in which case such Incremental First Lien Term Loans shall constitute Term Loans for all purposes hereunder and under the other Loan Documents or (ii)creating a new tranche of term loans (an Incremental First Lien Term Loan Tranche). The Incremental First Lien Facilities shall rank either pari passu or junior (as elected by the Borrower in its sole discretion) in right of payment and in respect of lien priority as to the Collateral with the Revolving Credit Commitments and the outstanding Term Loans. The proceeds of the Incremental First Lien Facilities shall be used for working capital, capital expenditures and other general corporate purposes (including any actions permitted by ArticleVII, including permitted Restricted Payments) of the Borrower and its Restricted Subsidiaries."
"(a) Upon the request of the Administrative Agent or the applicable L/C Issuer (i) if the applicable L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent or the applicable L/C Issuer, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender)."
"(d) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.07(b)(viii))) or (ii) the Administrative Agents good faith determination that there exists excess Cash Collateral; provided, however, that (x) Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 8.04), and (y) subject to Section 2.16, the Person providing Cash Collateral and the"
"(b) If the Borrower, the Administrative Agent and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may reasonably determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares (without giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders having been a Defaulting Lender."
"(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Collateral Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements);"
"(j) The Specified Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any such representation and warranty which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that any such representation or warranty qualified by or subject to a material adverse effect, material adverse change or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification of materiality)."
"(b) Set forth on Schedule 5.08(b)hereto is a complete and accurate list of all Material Real Property owned by any Loan Party or any of its Restricted Subsidiaries, as of the Closing Date, showing as of the Closing Date the street address (to the extent available), county or other relevant jurisdiction, state and record owner."
"5.18 Labor Matters. Other than mandatory national, provincial or industry-wide collective bargaining arrangements, there are no collective bargaining agreements or Multiemployer Plans, other than those listed on Schedule 5.18, covering the employees of Holdings or any of its Subsidiaries as of the Closing Date and neither Holdings nor any Subsidiary has suffered any strikes, walkouts, slowdowns, lockouts, work stoppagesor other material labor difficulty within the last five years. Except as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, there is (a)no unfair labor practice complaint pending against Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, threatened against any of them before the National Labor Relations Board (or any foreign equivalent thereof) and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, threatened against any of them and (b)to the knowledge of Holdings and the Borrower, no union representation question existing with respect to the employees of Holdings or any of its Subsidiaries and, to the knowledge of Holdings and the Borrower, no union organization activity that is taking place."
"So long as any Lender shall have any Commitment hereunder, any Loan or other First Lien Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each Restricted Subsidiary to:"
"6.09 Books and Records. Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP (subject to Section 1.03(c)) consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be."
"(vi) at any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent or the Collateral Agent in its reasonable judgment may deem necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such Guaranties, Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents."
"(f) deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) those required or requested by any Governmental Authority other than letters of credit) incurred in the ordinary course of business;"
"(i) the purchase or other acquisition of all or substantially all of the property and assets or business of, any Person or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person (such assets or Person being referred to herein as the Acquired Business) that, upon the consummation thereof, will be a Restricted Subsidiary (including, without limitation, as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(i) (each, a Permitted Acquisition):"
"(n) loans and advances to Holdings in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to Holdings in accordance with Sections 7.06(e), 7.06(f) or 7.06(i) (so long as such amounts are counted as Restricted Payments for purposes of such sections);"
"(p) (A)Indebtedness consisting of (a)the financing of insurance premiums or (b)take-or-pay obligations contained in supply arrangements, in the case of the foregoing clauses (a)and (b)in the ordinary course of business and (B)Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in respect of bank Guarantees, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the due date thereof;"
"7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:"
"(a) any Restricted Subsidiary may merge with (i)the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction), provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall be a Person organized and existing under the laws of the United States or any state thereof and shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (ii)any one or more other Restricted Subsidiaries, provided, that when any Guarantor is merging with another Restricted Subsidiary, (A)the Guarantor shall be the continuing or surviving Person or (B)to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03;"
"(b) of Holdings or any other Loan Party to create, incur, assume or suffer to exist Liens on property of such Person to secure the First Lien Obligations except for (i) negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03(e) or 7.03(k)(B) but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness, (ii) customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto, (iii) customary restrictions contained in the Permitted Other Indebtedness, Specified Refinancing Debt, Specified Second Lien Refinancing Debt, Permitted Ratio Debt and Indebtedness incurred pursuant to Section 7.03(f) or (n) (provided that such restrictions do not restrict the Liens securing the First Lien Obligations or the first priority status thereof), (iv) restrictions arising in connection with cash or other deposits permitted under Sections 7.01 or 7.02 and limited to such cash or deposit, (v) customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (vi) restrictions arising by reason of applicable Law, rule, regulation or order or the terms of any license, authorization, concession or permit, and (vii) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business."
"7.14 Prepayments, Etc. of Indebtedness and Modifications of Certain Debt Instruments. (a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (1) the principal of or interest on, or any other amount owing in respect of, the Second Lien Loans, (2) any Permitted Ratio Debt, (3) any Specified Refinancing Debt that is unsecured or secured on a junior basis to the First Lien Obligations or any Permitted Other Indebtedness that is unsecured or secured on a junior basis to the First Lien Obligations or (4) any Specified Affiliate Indebtedness (collectively, together with any Permitted Refinancing of any of the foregoing, Junior Financing), or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) a prepayment of Junior Financing made using the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section Error! Reference source not found., such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that immediately before and immediately after giving Pro Forma Effect to any such prepayment, no Default or Event of Default shall have occurred and be continuing; (ii) (A) the refinancing of the Second Lien Loans or any other Junior Financing (other than Specified Affiliate Indebtedness) with the Net Cash Proceeds of any Permitted Ratio Debt or of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount) (except to the extent the Net Cash Proceeds of any such Permitted Equity Issuance have been applied to make Investments pursuant to Section 7.02(o) or Restricted Payments pursuant to Section 7.06(c) or previously applied to make prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to this Section 7.14) and (B) the refinancing of the Second Lien Loans or any"
"(h) Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and does not deny coverage) and there is a period of sixty (60) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or"
"provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender. Notwithstanding anything herein to the contrary, neither the Administrative Agent nor any Lender may take any action with respect to an Event of Default arising out of Section 8.01(b) resulting solely from the breach of Section 7.11, without the express instructions from the Required Revolving Lenders."
"(B) upon receipt by the Administrative Agent of written notice, prior to the expiration of the 10th day subsequent to the date the relevant financial statements are required to be delivered pursuant to Section 6.01 (the Anticipated Cure Deadline), that the Borrower intends to exercise the Cure Right in respect of a fiscal quarter, the Lenders shall not be permitted to accelerate Loans held by them or to exercise remedies against the Collateral on the basis of a failure to comply with the requirements of the financial covenant set forth in Section 7.11 until such failure is not cured pursuant to the exercise of the Cure Right on or prior to the Anticipated Cure Deadline; provided that, for the avoidance of doubt, no Credit Extension under the Revolving Credit Facility shall be made for so long as the Borrower is not in compliance with the financial covenant set forth in Section 7.11 and such non- compliance has not been cured in accordance with the provisions of this Section 8.03."
"from and against any and all Indemnified Liabilities incurred by it; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Persons own gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07; provided, further, that to the extent any L/C Issuer is entitled to indemnification under this Section 9.07 solely in its capacity and role as L/C Issuer, only the Revolving Credit Lenders shall be required to indemnify such L/C Issuer in accordance with this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent and the Collateral Agent upon demand for its ratable share of any costs or out-of- pocket expenses (including the fees, disbursements and other charges of counsel) incurred by the Administrative Agent or the Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent or the Collateral Agent is not reimbursed for such expenses by or on behalf of the Borrower. The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other First Lien Obligations and the resignation of the Administrative Agent or the Collateral Agent."
"9.09 Successor Agents. (a) The Administrative Agent may resign as the Administrative Agent and the Collateral Agent upon thirty (30) days notice to the Lenders. If an Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Borrower at all times other than during the existence of an Event of Default (which consent of the Borrower shall not be unreasonably withheld or delayed and shall be deemed given if the Borrower fails to respond within ten (10) Business Days). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor"
"duties of such L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; (iii) Section 10.07(g) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (v) this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Persons providing any Specified Refinancing Debt to permit the refinancing of all outstanding Term Loans of any Class with replacement term loans in the amount of such Specified Refinancing Debt, to add such replacement term loans to this Agreement and to permit such replacement term loans and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof; (vi) this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Persons providing any Specified Refinancing Debt to permit the refinancing of all outstanding Revolving Credit Loans of any Class with replacement revolving credit loans in the amount of such Specified Refinancing Debt, to add such replacement revolving credit loans to this Agreement and to permit such replacement revolving credit loans and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof; (vii) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; and (viii) this Agreement may be amended (or amended and restated) to the extent required to give effect of the provisions of Section 2.14. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, the maturity of any of its Loans may not be extended and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender."
"the gross negligence or willful misconduct of such Agent-Related Person; provided, however, that in no event shall any Agent-Related Person have any liability to Holdings, the Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages)."
"10.05 Indemnification by the Borrower. Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless the Administrative Agent, the Syndication Agent, the Documentation Agent, each Arranger, each Agent-Related Person, each Lender, each L/C Issuer and their respective Affiliates, partners, directors, officers, employees, counsel, agents and, in the case of any funds, trustees, advisors, and other representatives and attorneys-in-fact (collectively the Indemnitees) from and against (and will reimburse each Indemnitee as the same are incurred for) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), expenses and disbursements (including the fees, disbursements and other charges of (i) one counsel to the Indemnitees taken as a whole, (ii) in the case of any conflict of interest, additional counsel to the affected Lender or group of Lenders, limited to one such additional counsel so long as representation of each such party by a single counsel is consistent with and permitted by professional responsibility rules, and (iii) if necessary, one local counsel in each relevant jurisdiction and special counsel) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) any Environmental Release of Hazardous Materials on or from any property currently owned, leased or operated by the Borrower, any Subsidiary or any other Loan Party or its Subsidiaries, or any Environmental Liability related in any way to the Borrower, any Subsidiary or any other Loan Party (other than any Environmental Release or Environmental Liability resulting solely from acts or omissions by Persons other than the Borrower, its Subsidiaries or any other Loan Party, with respect to the applicable property after the Collateral Agent sells the respective property pursuant to a foreclosure or has accepted a deed in lieu of foreclosure), (d) the Commitment Letter, dated as of October 14, 2013, the Arrangers and the other parties thereto with respect to the transactions contemplated by this Agreement or the Fee Letter or (e) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto and whether or not such proceeding is brought by the Borrower or any other Person (all the foregoing, collectively, the Indemnified Liabilities), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided, that such indemnity shall not, as to any Indemnitee, be available to the"
"10.08 Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a)to its Affiliates, to its and its Affiliates directors, officers, employees and agents, including accountants, auditors, legal counsel and other advisors and to the Persons approving or administering a Loan on behalf of an Agent or a Lender (it being understood that all Persons"
"10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the Maximum Rate). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b)exclude voluntary prepayments and the effects thereof, and (c)amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the First Lien Obligations hereunder."
"This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Credit Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Credit Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto."
"the amount of net cost savings, operating expense reductions, other operating improvements and acquisition synergies projected by the Borrower in good faith to be realized during such period (calculated on a Pro Forma Basis as though such items had been realized on the first day of such period) as a result of actions taken or to be taken in connection with the Transactions or any acquisition or disposition by the Borrower or any Restricted Subsidiary, any operational changes (including without limitation, operational changes arising out of the modification of contractual arrangements (including, without limitation, renegotiation of lease agreements, utilities and logistics contracts and insurance policies, as well as purchases of leased real properties)) or headcount reductions, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions, provided that (A) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02 of the Agreement, certifying that (x) such cost savings, operating expense reductions and synergies are reasonably expected and factually supportable as determined in good faith by the Borrower, and (y) such actions are to be taken and the results with respect thereto are to be achieved within (I) in the case of any such cost savings, operating expense reductions and synergies in connection with the Transactions, 18 months after the Closing Date and (II) in all other cases, within 18 months after the consummation of the acquisition or disposition, which is expected to result in such cost savings, expense reductions or synergies, (B) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (xix) to the extent duplicative of any expenses or charges otherwise added to"
"All Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated basis, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (subject to Section1.03(c)of the Agreement) (calculated (x)in the case of Indebtedness issued at a discount to its initial principal amount, on the entire principal amount thereof and (y)in the case of Indebtedness for which recourse is limited either to a specified amount or to an identified asset of such Person, at such specified amount or, if less, the fair market value of such identified asset)"
"obligations in respect of letters of credit (including Letters of Credit), bankers acceptances, bank Guarantees, surety bonds, performance bonds, advance payment guarantees or bonds, warranties, bid guarantees or bonds and similar instruments, except to the extent of unreimbursed amounts thereunder; provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Funded Indebtedness until one (1) Business Day after such amount is drawn"
"This Affiliated Lender Assignment and Assumption (this Assignment and Assumption) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the Assignor) and [Insert name of Assignee] (the Assignee). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the Credit Agreement), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full."
"Section1. Guaranty; Limitation of Liability. (a)Holdings hereby absolutely, unconditionally and irrevocably guarantees to the Collateral Agent, for the benefit of the Secured Parties, as primary obligor and not merely as surety, the punctual payment, whether at scheduled maturity or by acceleration, demand or otherwise, and performance of all First Lien Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any extensions, increases, modifications, substitutions, amendments, refinancings, refundings, replacements or renewals of any or all of the foregoing First Lien Obligations) and whether or not such action is committed, contemplated or provided for by the Loan Documents on the date hereof, whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such First Lien Obligations being the Guaranteed First Lien Obligations, provided that Guaranteed First Lien Obligations consisting of obligations of any Loan Party arising under any Secured Hedge Agreement shall exclude all Excluded Swap Obligations). Without limiting the generality of the foregoing, Holdings liability shall extend to all amounts that constitute part of the Guaranteed First Lien Obligations and would be owed by any other Loan Party to any Secured Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party."
"Section2. Guaranty Absolute. Holdings guarantees that the Guaranteed First Lien Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. Holdings further agrees that its Guarantee constitutes a continuing, absolute and unconditional guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Guaranteed First Lien Obligations or operated as a discharge thereof) and not merely of collection. The First Lien Obligations of Holdings under or in respect of this Guaranty are independent of the Guaranteed First Lien Obligations or any other First Lien Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against Holdings to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The liability of Holdings under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and Holdings hereby irrevocably waives any rights, claims or defenses it may now have or hereafter acquire in any way relating to, any or all of the following (whether or not Holdings has knowledge thereof):"
"(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed First Lien Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed First Lien Obligations or any other First Lien Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;"
"(c) Holdings hereby unconditionally and irrevocably waives (i)any defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of Holdings or other rights of Holdings to proceed against any of the other Loan Parties, any other guarantor or any other Person or any Collateral and (ii)any defense based on any right of set- off or counterclaim against or in respect of the First Lien Obligations of Holdings hereunder."
"Section8. Amendments, Etc. No amendment or waiver of any provision of this Guaranty and no consent to any departure by Holdings therefrom shall in any event be effective unless the same shall be in writing and signed by the Collateral Agent, the Required Lenders and Holdings and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all of the Secured Parties (other than any Lender that is, at such time, a Defaulting Lender), (a)reduce or limit the obligations of Holdings hereunder, release Holdings hereunder or otherwise limit Holdings liability with respect to the First Lien Obligations owing to the Secured Parties under or in respect of the Loan Documents, (b)postpone any date fixed for payment hereunder or (c)change any provision of this Section8."
"obligations under this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section14 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section14, or otherwise under this Guaranty, as it relates to such Loan Party, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section14 shall remain in full force and effect until the termination of this Guaranty in accordance with Section13. Each Qualified ECP Guarantor intends that this Section14 constitute, and this Section14 shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of each other Loan Party for all purposes of Section1a(18)(A)(v)(II)of the Commodity Exchange Act. Qualified ECP Guarantor means, in respect of any Swap Obligations, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an eligible contract participant under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under Section1a(18)(A)(v)(II)of the Commodity Exchange Act."
"FIRST LIEN SUBSIDIARY GUARANTY dated as of January15, 2014 (this Guaranty) among the Persons listed on the signature pageshereof under the caption Subsidiary Guarantors, the Additional Guarantors (as defined in Section8(b)) (such Persons so listed and the Additional Guarantors being, collectively, the Guarantors and, individually, each a Guarantor) and Credit Suisse AG, as Collateral Agent."
"NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make Loans and the L/C Issuers to make L/C Credit Extensions under the Credit Agreement, the Hedge Banks to enter into Secured Hedge Agreements from time to time and the Cash Management Banks to enter into Secured Cash Management Agreements from time to time and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor, jointly and severally with each other Guarantor, hereby agrees as follows:"
"(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed First Lien Obligations or any other First Lien Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any"
"Section16. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature pageto this Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty."
"Section2. Security for First Lien Obligations. This Agreement secures the payment and performance of all First Lien Obligations of each Grantor now or hereafter existing under or in respect of the Loan Documents (as such Loan Documents may be amended, amended and restated, supplemented, replaced, refinanced, re-tranched, extended, increased or otherwise modified from time to time (including any extensions of maturity dates and increases of the principal amount outstanding thereunder)) or otherwise, including, without limitation, any extensions, increases, modifications, substitutions, amendments, refinancings, refundings, replacements or renewals of any or all of the foregoing First Lien Obligations (whether or not such action is committed, contemplated or provided for by the Loan Documents on the date hereof), whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, fees, premiums, penalties, indemnifications, contract causes of action, costs, expenses or otherwise (all such First Lien Obligations being the Secured Obligations)."
"(b) Upon the occurrence and during the continuation of an Event of Default, promptly upon the request of the Collateral Agent, with respect to any Security Collateral in which any Grantor has any right, title or interest and that constitutes an uncertificated security, such Grantor will cause the issuer thereof either (i)to register the Collateral Agent as the registered owner of such security or (ii)to agree in an authenticated record such Grantor and the Collateral Agent that such issuer will comply with instructions with respect to such security originated by the Collateral Agent without further consent of such Grantor, such authenticated record to be in form and substance satisfactory to the Collateral Agent. Upon the occurrence and during the continuation of an Event of Default, with respect to any Security Collateral in which any Grantor has any right, title or interest and that is not an uncertificated security, promptly upon the request of the Collateral Agent, such Grantor will notify each such issuer of Pledged Equity that such Pledged Equity is subject to the security interest granted hereunder."
"(iv) To such Grantors knowledge, no Grantor or Intellectual Property Collateral material to the business of such Grantor is subject to any outstanding consent, settlement, decree, order, injunction, judgment or ruling restricting the use of any Intellectual Property Collateral or that would impair the validity or enforceability of such Intellectual Property Collateral."
"Section13. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby irrevocably appoints, which appointment is coupled with an interest, the Collateral Agent as such Grantors attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, from time to time, upon the occurrence and during the continuation of an Event of Default, in the Collateral Agents discretion, to take any action and to execute any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement, including, without limitation:"
"Section15. The Collateral Agents Duties. (a)The powers conferred on the Collateral Agent hereunder are solely to protect the Secured Parties interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not any Secured Party has or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which it accords its own property."
"Collateral Agents rights under this Agreement, may sell Inventory which bears any Trademark owned by or licensed to any Grantor and any Inventory that is covered by any Copyright owned by or licensed to any Grantor and the Collateral Agent may finish any work in process and affix any Trademark owned by or licensed to any Grantor and sell such Inventory as provided herein, subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such Trademarks."
"(b) Each Grantor will upon demand pay to the Collateral Agent the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel (provided that fees and expenses of counsel shall be limited to one counsel, plus one local counsel in any relevant jurisdiction) and of any experts and agents, that the Collateral Agent may incur in connection with (i)the administration of this Agreement, (ii)the custody, preservation, use or operation of, or the sale of, collection from or other realization upon, any of the Collateral of such Grantor, (iii)the exercise or enforcement of any of the rights of the Collateral Agent or the other Secured Parties hereunder or (iv)the failure by such Grantor to perform or observe any of the provisions hereof."
"Section19. Amendments; Waivers; Additional Grantors; Etc. (a)No amendment or waiver of any provision of this Agreement, and no consent to any departure by any Grantor herefrom, shall in any event be effective unless the same shall be in writing and signed by the Collateral Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of the Collateral Agent or any other Secured Party to exercise, and no delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right."
"SECTION1. Grant of Security. The undersigned hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in, all of its right, title and interest in and to all of the Collateral of the undersigned, whether now owned or hereafter acquired or created by the undersigned, wherever located and whether now or hereafter existing or arising, including, without limitation, the property and assets of the undersigned set forth on the attached supplemental schedules to the Schedules to the Security Agreement."
"(vi) any and all claims for damages, other payments and/or injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to sue for and collect, or otherwise recover, such damages, payments or other relief; and"
"the payment and performance of all First Lien Obligations of the Grantor now or hereafter existing under or in respect of the Loan Documents (as such Loan Documents may be amended, amended and restated, supplemented, replaced, refinanced, re-tranched, extended, increased or otherwise modified from time to time (including any extensions of maturity dates and increases of the principal amount outstanding thereunder)) or otherwise, including, without limitation, any extensions, increases, modifications, substitutions, amendments, refinancings, refundings, replacements or renewals of any or all of the foregoing First Lien Obligations (whether or not such action is committed, contemplated or provided for by the Loan Documents on the date hereof), whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, fees, premiums, penalties, indemnifications, contract causes of action, costs, expenses or otherwise."
"acceptance of a Statement of Use or an Amendment to Allege Use with respect thereto, solely to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark applications or any registrations that issue therefrom under applicable federal law), together with the goodwill of the business connected with the use thereof and symbolized thereby;"
"respect of the Loan Documents (as such Loan Documents may be amended, amended and restated, supplemented, replaced, refinanced, re-tranched, extended, increased or otherwise modified from time to time (including any extensions of maturity dates and increases of the principal amount outstanding thereunder)) or otherwise, including, without limitation, any extensions, increases, modifications, substitutions, amendments, refinancings, refundings, replacements or renewals of any or all of the foregoing First Lien Obligations (whether or not such action is committed, contemplated or provided for by the Loan Documents on the date hereof), whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, fees, premiums, penalties, indemnifications, contract causes of action, costs, expenses or otherwise."
"In all such examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified copies of all copies submitted to us as conformed or facsimile, electronic or photostatic copies. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assume the accuracy of, statements and"
"(f) relating to any purported waiver, release or variation of rights or other agreement to similar effect (all of the foregoing, collectively, a Waiver) by any Obligor under any of the Financing Documents to the extent limited by Sections 1-102(3), 5-103(c), 9-602 or 9-603 of the NYUCC or other provisions of applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim,"
"duty, ground for discharge or release of, or defense available to, an obligor generally or as a guarantor or co-obligor or otherwise available as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by Sections 9-602 or 9-603 of the NYUCC or other applicable law (including judicial decisions);"
"(D) We have assumed that (i)the obligations of each Guarantor under the Financing Documents are necessary or convenient to the conduct, promotion or attainment of the business of each such Obligor; and (ii)consideration that is sufficient to support the agreements of each Guarantor under the Financing Documents has been received by each such Guarantor."
"(E) Pursuant to Section9-108(c)of the NYUCC, a description of collateral as all assets or all personal property or words of similar import is not sufficient for purposes of Section9- 203 of the NYUCC and, accordingly, we express no opinion regarding, or the effect of, any such description of collateral in the Credit Agreement."
"2. No event has occurred that has adversely affected the good standing of any of the Obligors under the laws of the state of its incorporation or formation, and each Obligor has paid all taxes, if any, and taken all other action required by state law to maintain such good standing. To the best knowledge of undersigned, no grounds exist for the revocation or forfeiture of the by-laws, certificates of incorporation, operating agreements or certificates of formation, as the case may be, of any of the Obligors."
"10. None of the Obligors (i)is engaged, holds itself out as being engaged, or proposes to engage, primarily in the business of investing, reinvesting or trading in securities, (ii)is engaged, or proposes to engage, in the business of issuing any face- amount certificates of the installment type, and, if any Obligor has been engaged in such business, it does not have any such certificate outstanding, and (iii)is engaged, or proposes to engage, in the business of investing, reinvesting, owning, holding, or trading in securities, and it does not own or propose to acquire investment securities having a value exceeding 40% of the value of its total assets (exclusive of government securities and cash items) on an unconsolidated basis. Each of the Obligors is primarily engaged, directly or through a wholly-owned subsidiary or subsidiaries, in a business other than that of investing, reinvesting, owning, holding or trading in securities. For purposes of this paragraph 10:"
"a. face-amount certificate of the installment type means any certificate, investment contract or other security that represents an obligation to pay on the part of its issuer a stated or determinable sum or sums at a fixed or determinable date or dates more than twenty-four months after the date of issuance in consideration of the payment of periodic installments of a stated or determinable amount;"
"f. cash items includes coins, paper currency, current accounts receivable, demand deposits at U.S. banks, and timely checks of others (which are orders on banks to immediately supply funds), but does not include time deposits, certificates of deposit, or demand deposits at a foreign bank or a foreign office or branch of a U.S. bank; and"
"The undersigned has furnished the Administrative Agent and the Borrower with IRS FormW-8IMY accompanied by one of the following forms from each of its partners/members claiming the portfolio interest exemption: (i)an IRS FormW-8BEN or (ii)an IRS FormW-8IMY accompanied by an IRS FormW-8BEN from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1)if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and (2)the undersigned shall have at all times furnished the Borrower and the Administrative Agent in writing with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payment."
"Computer Software means all computer software, programs and databases (including, without limitation, source code, object code and all related applications and data files), firmware and documentation and materials relating thereto, together with any and all maintenance rights, service rights, programming rights, hosting rights, test rights, improvement rights, renewal rights and indemnification rights and any substitutions, replacements, improvements, error corrections, updates and new versions of any of the foregoing."
"Second Priority Collateral Documents means the Collateral Documents as defined in the Second Lien Credit Agreement, the Second Lien Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each of the security agreements and other instruments and documents executed and delivered by Holdings, the Borrower or any other Grantor for purposes of providing collateral security for any Second Priority Obligation."
"Senior Priority Collateral means any Collateral as defined in any First Lien Credit Agreement Loan Document or any other Senior Priority Debt Document or any other assets of Holdings, the Borrower or any other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Senior Priority Collateral Document as security for any Senior Priority Obligations."
"Senior Priority Obligations, shall assign such Lien to the Designated Senior Priority Representative as security for all Senior Priority Obligations for the benefit of the Senior Priority Secured Parties (but may retain a junior Lien on such assets or property subject to the terms hereof) and (ii) until such assignment or such grant of a similar Lien to each Senior Priority Representative, shall be deemed to hold and have held such Lien for the benefit of each Senior Priority Representative and the other Senior Priority Secured Parties as security for the Senior Priority Obligations."
"Section 2.05. Perfection of Liens. Except for the limited agreements of the Senior Priority Representatives pursuant to Section 5.05 hereof, none of the Senior Priority Representatives or the Senior Priority Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Priority Representatives or the Second Priority Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Senior Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the Senior Priority Representatives, the Senior Priority Secured Parties, the Second Priority Representatives, the Second Priority Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law."
"by them to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction."
"(c) Subject to the proviso in clause (ii) of Section 3.01(a), (i) each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that neither such Second Priority Representative nor any such Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by any Senior Priority Representative or any Senior Priority Secured Party with respect to the Shared Collateral under the Senior Priority Debt Documents, including any Disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby waives any and all rights it or any such Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Senior Priority Representatives or the Senior Priority Secured Parties seek to enforce or collect the Senior Priority Obligations or the Liens granted on any of the Senior Priority Collateral, regardless of whether any action or failure to act by or on behalf of any Senior Priority Representative or any other Senior Priority Secured Party is adverse to the interests of the Second Priority Secured Parties."
"(d) The Second Priority Debt Documents may be amended, restated, waived, supplemented or otherwise modified in accordance with their terms, and the Indebtedness under the Second Priority Debt Documents may be Refinanced, in each case without the consent of any Senior Priority Representative or Senior Priority Secured Party; provided, however, that, without the consent of the First Lien Administrative Agent, acting with the consent of the Required Lenders (as such term is defined in the First Lien Credit Agreement) and each other Senior Priority Representative (acting with the consent of the requisite holders of each series of Additional Senior Priority Debt), no such amendment, restatement, supplement, modification (including self effecting or other modifications pursuant to Section 2.14 of the Second Lien Credit Agreement) or Refinancing shall (1) result in (x) the aggregate amount of Second Priority Obligations in existence on the date of such amendment, restatement, amendment and restatement, waiver, supplement,"
"Section 6.01. Financing Issues. Until the Discharge of Senior Priority Obligations has occurred, if Holdings, the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding, then each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) subject to the last sentence of this Section 6.01, if any Senior Priority Representative or any Senior Priority Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to consent (or not object) to Holdings, the Borrowers or any other Grantors obtaining financing under Section 363 or Section 364 of Title 11 of the United States Code (the Bankruptcy Code) or any similar provision of any other Debtor Relief Law (DIP Financing), it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Obligations are so subordinated to Liens securing Senior Priority Obligations under this Agreement and (y) any carve-out for professional and United States Trustee fees agreed to by the Senior Priority Representatives, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Priority Obligations made by any Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to (and will not otherwise contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Priority Obligations at any sale in foreclosure of Senior Priority Collateral, (D) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority Collateral and (E) it will raise no objection to (and will not otherwise contest or"
"Section 6.02. Relief From the Automatic Stay. Until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the Designated Senior Priority Representative."
"or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that any claims of the Senior Priority Secured Parties and the Second Priority Secured Parties in respect of the Shared Collateral constitute a single class of claims (rather than separate classes of senior and junior secured claims), then each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Shared Collateral (with the effect being that, to the extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority Secured Parties), the Senior Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (whether or not allowed or allowable) before any distribution is made in respect of the Second Priority Obligations, with each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby acknowledging and agreeing to turn over to the Designated Senior Priority Representative amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Priority Secured Parties."
"Section 6.07. Application. This Agreement, which the parties hereto expressly acknowledge is a subordination agreement under Section 510(a) of Title 11 of the United States Code or any similar provision of any other Debtor Relief Law, shall be effective before, during and after the commencement of any Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor."
"Section 6.09. 506(c) Claims. Until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, on behalf of itself and each Second Priority Secured Party under its Second Priority Debt Facility, agrees that it will not assert or enforce any claim under Section 506(c) of Title 11 of the United States Code or any similar provision of any other Debtor Relief Law senior to or on a parity with the Liens securing the Senior Priority Obligations for costs or expenses of preserving or disposing of any Shared Collateral."
"Section1. In accordance with Section8.09 of the First Lien/Second Lien Intercreditor Agreement, the New Representative by its signature below becomes a Representative under, and the related Second Priority ClassDebt and Second Priority ClassDebt Parties become subject to and bound by, the First Lien/Second Lien Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and such Second Priority ClassDebt Parties, hereby agrees to all the terms and provisions of the First Lien/Second Lien Intercreditor Agreement applicable to it as a"
"Section1\. Defined Terms; References. Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement, as amended by this Amendment. Unless otherwise indicated, all references in this Amendment to articles, schedules and sections refer to articles, schedules and sections of the Credit Agreement."
"Section5.10 Determination of Alternate Rate of Interest. At any time that (i)the circumstances set forth in Section5.06 or 5.07have arisen and such circumstances are unlikely to be temporary or (ii)the circumstances set forth in Section5.06 or 5.07have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section12.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Revolving Credit Lenders stating that such Required Revolving Credit Lenders object to such amendment. At any time that the circumstances set forth in Section5.06 or 5.07 have arisen, then until an alternate rate of interest shall be determined in accordance with this Section5.10, (x)any Revolving Credit Borrowing Request that requests the conversion of any Revolving Credit Borrowing to, or continuation of any Revolving Credit Borrowing as, a Eurodollar Borrowing shall be ineffective and (y)if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABRBorrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement."
"5.2 Confirmation. All of the terms and provisions of the Credit Agreement, as amended by this Amendment, are, and shall remain, in full force and effect following the effectiveness of this Amendment. Neither the execution of this Amendment by the Administrative Agent or the Lenders, nor any other act or omission by the Administrative Agent or any of the Lenders or their respective officers in connection herewith, shall be deemed to be an agreement by the Administrative Agent or the Lenders to agree to any future amendments, waivers or otherwise."
"Cash Management Services means any banking services that are provided to the Borrower or any Subsidiary by the Administrative Agent, any LC Issuer or any other Lender or any Affiliate of any of the foregoing, including without limitation: (a)credit cards, (b)credit card processing services, (c)debit cards, (d)purchase cards, (e)stored value cards, (f)automated clearing house or wire transfer services, or (g)treasury management, including controlled disbursement, consolidated account, lockbox, overdraft, return items, sweep and interstate depository network services."
"Defaulting Lender means, subject to Section2.22(b), any Lender that (a)has failed to (i)fund all or any portion of its Loans within two (2)Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lenders good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or waived, or (ii)pay to the Administrative Agent, any LC Issuer or any Lender any other amount required to be paid by it hereunder (including in respect of its participation in Facility LCs) within two (2)Business Days after the date when due, (b)has notified the Borrower, the Administrative Agent or any LC Issuer in writing that it does not intend or not expect to comply with all or any portion of its funding obligations hereunder or generally under agreements in which it commits to extend credit, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c)has failed, within three (3)Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower in form and substance satisfactory to each of them), or"
"Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation if, and only to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof), including by virtue of (a)such Guarantors failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective or would become effective with respect to such Swap Obligation or (b)in the case of a Swap Obligation subject to a clearing requirement pursuant to Section2(h) of the Commodity Exchange Act (or any successor provision thereto), such Guarantor being a financial entity as defined in Section2(h) (7)(C)(i)of the Commodity Exchange Act (or any successor provision thereto) at the time the guarantee of such Guarantor or the grant of such security interest becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal."
"Governmental Authority means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, any supra-national bodies such as the European Union or the European Central Bank), any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing) and any self-regulatory organization (including the National Association of Insurance Commissioners). For the avoidance of doubt, no Government-Sponsored Enterprises shall be deemed to be a Governmental Authority."
"Immaterial Subsidiary means each Subsidiary which (a)has Consolidated Total Assets (after the elimination of intercompany items) representing less than ten percent (10%)of the Borrowers Consolidated Total Assets and Consolidated Net Income (after the elimination of intercompany items) representing less than ten percent (10%)of the Borrowers Consolidated Net Income and (b)taken together with all Immaterial Subsidiaries, has Consolidated Total Assets (after the elimination of intercompany items) representing less than twenty- five percent (25%)of the Borrowers Consolidated Total Assets and Consolidated Net Income (after elimination of intercompany items) representing less than twenty-five percent (25%)of the Borrowers Consolidated Net Income, in the case of each of (a)and (b), determined annually on the date that is ten (10)Business Days after the date that the audited financial statements are required to be delivered pursuant to Section6.1(a) below, based on the net assets reflected on such financial statements."
"LC Issuer means (a)each of RBC and U.S. Bank in their respective capacities as such (it being understood that none of the LC Issuers identified in this clause (a)shall be obligated to issue any trade or commercial letters of credit hereunder or issue any letters of credit other than standby letters of credit) and (b)each other Lender designated by the Borrower as an LC Issuer hereunder that has agreed to such designation (and is reasonably acceptable to the Administrative Agent), each in its capacity as the issuer of Facility LCs hereunder. Each LC Issuer may, in its discretion, arrange for one or more Facility LCs to be issued by Affiliates or branches of such LC Issuer, in which case the term LC Issuer shall include any such Affiliate or branch, as applicable, with respect to Facility LCs issued by such Affiliate."
"Lien means any lien (statutory or other), mortgage, pledge, hypothecation, assignment for security purposes, deposit arrangement, encumbrance or other security interest or similar collateral arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement, but excluding the interest of a lessor under an operating lease)."
"Minimum Collateral Amount means, with respect to a Defaulting Lender, at any time, (i)with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the relevant LC Issuer(s) with respect to such Defaulting Lender for all Facility LCs issued by such LC Issuer(s) and outstanding at such time and (ii)otherwise, an amount determined by the Administrative Agent and the relevant LC Issuer(s) in their reasonable discretion."
"Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, but excluding (i)any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section2.20) and (ii)Excluded Taxes."
"Pricing Schedule means the Schedule attached hereto identified as such; provided that (i)if the Public Debt Ratings of the Borrower by S&P and Moodys differ by one level, then the applicable pricing level for the higher of such Public Debt Rating shall apply and (ii)if there is a split in the Public Debt Ratings of the Borrower of more than one level, then the pricing level that is one level lower than the pricing level of the higher Public Debt Rating shall apply."
RegulationU means RegulationU of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
"Wholly-Owned Subsidiary of a Person means (i)any Subsidiary of which100% of the beneficial ownership interests shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii)any partnership, limited liability company, association, joint venture or similar business organization of which100% of the beneficial ownership interests shall at the time be so owned or controlled."
"2.9. Conversion and Continuation of Outstanding Advances; Maximum Number of Interest Periods. Base Rate Advances shall continue as Base Rate Advances unless and until such Base Rate Advances are converted into Eurocurrency Advances pursuant to this Section2.9 or are repaid in accordance with Section2.7. Each Eurocurrency Advance shall continue as a Eurocurrency Advance until the end of the then applicable Interest Period therefor, at which time such Eurocurrency Advance shall be automatically converted into a Base Rate Advance unless (x)such Eurocurrency Advance is or was repaid in accordance with Section2.7 or (y)the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurocurrency Advance continue as a Eurocurrency Advance for the same or another Interest Period. Subject to the terms of Section2.6, the Borrower may elect from time to time to convert all or any part of a Base Rate Advance into a Eurocurrency Advance. The Borrower shall give the Administrative Agent irrevocable notice in the form of ExhibitC-2 (a Conversion/Continuation Notice) of each conversion of a Base Rate Advance into a Eurocurrency Advance, conversion of a Eurocurrency Advance to a Base Rate Advance, or continuation of a Eurocurrency Advance not later than10:00 a.m. (New York City time) at least three (3)Business Days prior to the date of the requested conversion or continuation, specifying:"
"(b) Participations. Upon the issuance or Modification by the relevant LC Issuer of a Facility LC, such LC Issuer shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from such LC Issuer, a participation in such Facility LC (and each Modification thereof) and the related LC Obligations in proportion to its Pro Rata Share."
"(c) Notice. Subject to Section2.19(a), the Borrower shall give the Administrative Agent and the applicable LC Issuer notice prior to10:00 a.m. (New York City time) at least three (3)Business Days (or such shorter period of time as the Borrower and the related LC Issuer may agree upon) prior to the proposed date of issuance or Modification of each Facility LC, specifying the beneficiary, the proposed date of issuance (or Modification) and the expiry date of such Facility LC, and describing the proposed terms of such Facility LC and the nature of the transactions proposed to be supported thereby. Upon receipt of such notice, the Administrative Agent shall promptly notify the relevant LC Issuer and each Lender of the contents thereof and of the amount of such Lenders participation in such proposed Facility LC. The issuance or Modification by any LC Issuer of any Facility LC shall, in addition to the conditions precedent set forth in ArticleIV (if, in the case of a Modification, such Modification renews, increases the amount of, or extends the expiry date of a Facility LC), be subject to the conditions precedent that such Facility LC shall be satisfactory to such LC Issuer and that the Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Facility LC as such LC Issuer shall have reasonably requested in form and substance reasonably satisfactory to such LC Issuer (each, a Facility LC Application). No LC Issuer shall have any independent duty to ascertain whether any of the applicable conditions set forth in ArticleIV have been satisfied; provided, however, that no LC Issuer shall issue a Facility LC if, on or before the proposed date of issuance, the relevant LC Issuer shall have received notice from the Administrative Agent or the Required Lenders that any such applicable condition has not been satisfied or waived. In the event of any conflict between the terms of this Agreement and the terms of any Facility LC Application, the terms of this Agreement shall control."
"reimbursement shall be due by11:00 a.m. on the next succeeding Business Day. All such amounts paid by the relevant LC Issuer and remaining unpaid by the Borrower after such amounts are due in accordance with the foregoing shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of2.00% per annum plus the rate applicable to Base Rate Advances for such day. The relevant LC Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all amounts received by it from the Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by such LC Issuer, but only to the extent such Lender has made payment to such LC Issuer in respect of such Facility LC pursuant to Section2.19(e). Subject to the terms and conditions of this Agreement (including without limitation the submission of a Borrowing Notice in compliance with Section2.8 and the satisfaction of the applicable conditions precedent set forth in ArticleIV), the Borrower may request an Advance hereunder for the purpose of satisfying any Reimbursement Obligation."
"(j) Lenders Indemnification. Each Lender shall, ratably in accordance with its Pro Rata Share, indemnify the relevant LC Issuer, its affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees gross negligence or willful misconduct or such LC Issuers failure to pay under any Facility LC issued by such LC Issuer after the presentation to it of a request strictly complying with the terms and conditions of the Facility LC) that such indemnitees may suffer or incur in connection with this Section2.19 or any action taken or omitted by such indemnitees hereunder."
"2.20. Replacement of Lender. If the Borrower is required pursuant to Sections3.1, 3.2 or3.5 to make any additional payment to any Lender (or any of its Participants) or any Governmental Authority for the account of any Lender (or any of its Participants), or if any Lender (or any of its Participants) notifies the Borrower of a Change in Law or a change in the Risk-Based Capital Guidelines and of such Lenders (or Participants) intention to claim compensation therefor under Section3.1 or3.2, or if any Lenders obligation to make or continue, or to convert Base Rate Advances into, Eurocurrency Advances shall be suspended pursuant to Section3.3 or if any Lender defaults in its obligation to make a Loan or reimburse the relevant LC Issuer pursuant to Section2.19(e) or if any Lender declines to approve a"
"that day, and shall remain fixed at the Highest Lawful Rate for each day thereafter until the total amount of interest accrued equals the total amount of interest which would have accrued if there were no such ceiling rate as is imposed by this sentence. Thereafter, interest shall accrue at the Stated Rate unless and until the Stated Rate again exceeds the Highest Lawful Rate when the provisions of the immediately preceding sentence shall again automatically operate to limit the interest accrual rate. The daily interest rates to be used in calculating interest at the Highest Lawful Rate shall be determined by dividing the applicable Highest Lawful Rate per annum by the number of days in the calendar year for which such calculation is being made. None of the terms and provisions contained in this Agreement or in any other Loan Document which directly or indirectly relate to interest shall ever be construed without reference to this Section2.21, or be construed to create a contract to pay for the use, forbearance or detention of money at an interest rate in excess of the Highest Lawful Rate. If the term of any Loan or any other Obligation outstanding hereunder or under the other Loan Documents is shortened by reason of acceleration of maturity as a result of any Event of Default or by any other cause, or by reason of any required or permitted prepayment, and if for that (or any other) reason any Lender at any time, including but not limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of interest calculated at the Highest Lawful Rate, then and in any such event all of any such excess interest shall be canceled automatically as of the date of such acceleration, prepayment or other event which produces the excess, and, if such excess interest has been paid to such Lender, it shall be credited pro tanto against the then-outstanding principal balance of the Borrowers Obligations to such Lender, effective as of the date or dates when the event occurs which causes it to be excess interest, until such excess is exhausted or all of such principal has been fully paid and satisfied, whichever occurs first, and any remaining balance of such excess shall be promptly refunded to its payor."
"(B) With respect to any LC Fee not required to be paid to any Defaulting Lender pursuant to clause(B) above, the Borrower shall (x)pay to each Non- Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenders participation in LC Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause(iv) below, (y)pay to each LC Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such LC Issuers Fronting Exposure to such Defaulting Lender, and (z)not be required to pay the remaining amount of any such fee."
"(c) imposes any other condition (other than Taxes) the result of which is to increase the cost to any Lender or any applicable Lending Installation or any LC Issuer of making, funding or maintaining its Eurocurrency Loans or of issuing or participating in Facility LCs, or reduces any amount receivable by any Lender or any applicable Lending Installation or any LC Issuer in connection with its Eurocurrency Loans, Facility LCs or participations therein, or requires any Lender or any applicable Lending Installation or any LC Issuer to make any payment calculated by reference to the amount of Eurocurrency Loans, Facility LCs or participations therein or interest or LC Fees received by it, by an amount deemed material by such Lender or such LC Issuer, as the case may be, and the result of any of the foregoing is to increase the cost to such Person of making or maintaining its Loans or Commitment or of issuing or participating in Facility LCs or to reduce the amount received by such Person in connection with such Loans or Commitment, Facility LCs or participations therein, then, within thirty (30)days after receipt by the Borrower of written demand by such Person in accordance with Section3.6, the Borrower shall pay such Person, as the case may be, such additional amount or amounts as will compensate such Person for such increased cost or reduction in amount received, as such Person reasonably determines (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of such Person under agreements having provisions similar to this Section3.1 after consideration of such factors as such Person then reasonably determines to be relevant). Failure or delay on the part of any such Person to demand compensation pursuant to this Section3.1 shall not constitute a waiver of such Persons right to demand such compensation; provided that the Borrower shall not be required to compensate a Person pursuant to this Section3.1 for any increased costs or reductions suffered more than270days prior to the date that such Person notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Persons intention to claim compensation therefor in accordance herewith; provided further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the270-day period referred to above shall be extended to include the period of retroactive effect thereof."
"3.4. Funding Indemnification. If (a)any payment of a Eurocurrency Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, (b)a Eurocurrency Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, (c)a Eurocurrency Loan is converted other than on the last day of the Interest Period applicable thereto, (d)the Borrower fails to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto, or (e)any Eurocurrency Loan is assigned other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section2.20, the Borrower will indemnify each Lender for such Lenders costs, expenses and Interest Differential (as reasonably determined by such Lender in a manner consistent with its other credit facilities generally) incurred as a result of such prepayment. The term Interest Differential shall mean that sum equal to the greater of zero or the financial loss incurred by the Lender resulting from prepayment, calculated as the difference between the amount of interest such Lender would have earned (from the investments in money markets as of the Borrowing Date of such Advance) had prepayment not occurred and the interest such Lender will actually earn (from like investments in money markets as of the date of prepayment) as a result of the redeployment of funds from the prepayment. The Borrower hereby acknowledges that the Borrower shall be required to pay Interest Differential with respect to any portion of the principal balance paid or that becomes due before its scheduled due date, whether voluntarily, involuntarily, or otherwise, including, without limitation, any principal payment made following default, demand for payment, acceleration, collection proceedings, foreclosure, sale or other disposition of collateral, bankruptcy or other insolvency proceedings, eminent domain, condemnation or otherwise. Such prepayment fee shall at all times be an Obligation as well as an undertaking by the Borrower to the Lenders whether arising out of a voluntary or mandatory prepayment."
"3.6. Selection of Lending Installation; Mitigation Obligations; Lender Certificates; Survival of Indemnity. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurocurrency Loans to reduce any liability of the Borrower to such Lender under Sections3.1, 3.2 and3.5 or to avoid the unavailability of Eurocurrency Advances under Section3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written certificate of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Section3.1, 3.2, 3.4 or3.5 (other than Section3.5(c)). Such written certificate shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of clearly demonstrable error. Determination of amounts payable under such Sections in connection with a Eurocurrency Loan shall be calculated as though each Lender funded its Eurocurrency Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurocurrency Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written certificate of any Lender shall be payable within thirty (30)days after demand after receipt by the Borrower of such written certificate. The obligations of the Borrower under Sections3.1, 3.2, 3.4 and3.5 shall survive payment of the Obligations and termination of this Agreement."
"(b) The Administrative Agent shall have received a certificate, signed by an Authorized Officer of the Borrower, certifying that on the Effective Date (i)no Default or Event of Default has occurred and is continuing, (ii)the representations and warranties contained in ArticleV are (x)with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all respects on and as of such earlier date and (y)with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects on and as of such earlier date."
"(d) Promptly after the date of filing with the U.S.Securities and Exchange Commission, copies of all financial statements and reports that the Borrower sends to its shareholders generally, and copies of all financial statements and regular, periodic or special reports (including any report on Form8-K) that the Borrower or any Subsidiary may make to, or file with, the U.S.Securities and Exchange Commission."
"(v) Additional Indebtedness in an aggregate principal amount not to exceed the greater of $50,000,000 and1.75% of the Borrowers Consolidated Net Worth (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section6.1 (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section5.4)) at the time of incurrence thereof."
"(w) Refinancings, extensions or renewals of any of the foregoing Indebtedness or any Indebtedness under this clause(w) (including by exchange) to the extent the principal amount thereof is not increased (including extensions, renewals or replacements of guarantees in respect of such Indebtedness as so refinanced, extended or renewed) except to the extent that such increase represents, fees, costs and expenses of such renewal or extension, provided that the material terms applicable to such refinanced Indebtedness are no less favorable to the Borrower or any Subsidiary, as applicable, taken as a whole, than the material terms in effect immediately prior to such refinancing, except as the same may reflect then-existing market conditions with the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed)."
"(h) Dispositions of Investments for fair market value by any Regulated Insurance Company (other than equity interests of Subsidiaries engaged in insurance lines of business) and dispositions for fair market value of Investments in marketable securities by the Borrower and its Subsidiaries, in each case in the Ordinary Course of Business and consistent with the investment policy approved by the board of directors (or a committee thereof) of the Borrower or such Subsidiary, as applicable, or otherwise approved by the board of directors (or a committee thereof) of the Borrower or such Subsidiary, as applicable; provided that, at the time of such disposition, the Borrower is in compliance with the financial covenants set forth in Section6.18."
"(f) Liens arising solely by virtue of any statutory or common law provision relating to bankers liens, rights of set-off or similar rights and remedies as to deposit accounts, securities accounts or other funds maintained with a creditor depository institution; provided that (i)such account is not a dedicated cash collateral account and is not subject to restriction against access by Borrower or a Subsidiary in excess of those set forth by regulations promulgated by the Board of Governors of the Federal Reserve, and (ii)such account is not intended by the Borrower or any Subsidiary to provide collateral to the depository institution."
"(b) Minimum Consolidated Net Worth. The Borrower will not permit Consolidated Net Worth of the Borrower as of the last day of any fiscal quarter to be less than the sum of (i)75% of the Consolidated Net Worth of the Borrower as of the Effective Date (the Reference Date), plus (ii)50% of the positive amount, if any, of the cumulative Consolidated Net Income (loss) of the Borrower and its Subsidiaries after the Reference Date, plus (iii)50% of the aggregate amount of all equity contributions to, or equity issuances of, the Borrower after the Reference Date. For the purpose of applying clause(iii) of the immediately preceding sentence to any equity issuance by the Borrower in respect of the conversion, settlement, repurchase or other retirement of any of (x)the Borrowers3.00% Convertible Senior Notes due 2017 and (y)other convertible notes, if any, issued after the date hereof by Borrower, the amount of such equity issuance will be the increase (if any) in the Borrowers consolidated shareholders equity recorded in respect of such conversion, settlement, repurchase or other retirement, and such equity issuance shall result in the addition of an amount equal to50% of the amount of such increase pursuant to such clause(iii) at the time such increase is recorded; provided, however, that if any repurchase by the Borrower of any common shareholder interests of the Borrower within180days of such conversion, settlement, repurchase or other retirement results in the Borrower recording a reduction of its consolidated shareholders equity, then the amount initially added pursuant to such clause(iii) in respect of such conversion, settlement, repurchase or other retirement shall be reduced (but not below zero) by an amount equal to50% of the amount of such reduction at the time such reduction is recorded."
7.4. The breach by the Borrower (other than a breach which constitutes an Event of Default under another Section of this ArticleVII) of any of the terms or provisions of this Agreement or any other Loan Document which is not remedied within thirty (30)days after the earlier to occur of (i)knowledge of an Authorized Officer of the Borrower and (ii)notice to the Borrower from the Administrative Agent of any such breach.
"(d) At any time while any Event of Default is continuing, neither the Borrower nor any Person claiming on behalf of or through the Borrower shall have any right to withdraw any of the Cash Collateral. After all of the Obligations under this Agreement and the other Loan Documents have been paid in full in cash and the Aggregate Commitment has been terminated, any remaining Cash Collateral shall be promptly returned, and in any event within five (5)Business Days, by the Administrative Agent to the Borrower or paid to whomever may be legally entitled thereto at such time."
"counsel (and one additional local counsel in each relevant jurisdiction and one firm of regulatory counsel) to the Administrative Agent, , the LC Issuers and the Arrangers incurred from time to time, in connection with the due diligence, preparation, administration, negotiation, execution, delivery, syndication, distribution (including, without limitation, via Debt Domain and any other internet service selected by the Administrative Agent), review, amendment, modification, and administration of the Loan Documents. The Borrower also agrees to reimburse the Administrative Agent, the LC Issuers, the Arrangers and the Lenders for any costs, internal charges and out-of- pocket expenses, including, without limitation, filing and recording costs and fees, costs of any environmental review, and consultants fees, travel expenses and reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent and one additional counsel for all of the Lenders and the LC Issuers (and one additional local counsel in each relevant jurisdiction for the Administrative Agent and for all of the Lenders and LC Issuers and one additional regulatory counsel) and additional counsel as the Administrative Agent or any Lender or group of Lenders, LC Issuers or group of LC Issuers reasonably determine are necessary to avoid actual or potential conflicts of interest or the availability of different claims or defenses, paid or incurred by the Administrative Agent, or any LC Issuer or any Lender in connection with the collection and enforcement of the Loan Documents at any time during an Event of Default."
"(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or"
"10.10. Rights as a Lender. In the event the Administrative Agent is a Lender, the Administrative Agent shall have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the same as though it were not the Administrative Agent, and the term Lender or Lenders shall, at any time when the Administrative Agent is a Lender, unless the context otherwise indicates,"
"12.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns permitted hereby, except that (i)the Borrower shall not have the right to assign its rights or obligations under the Loan Documents without the prior written consent of each Lender, (ii)any assignment by any Lender must be made in compliance with Section12.3, and (iii)any transfer by participation must be made in compliance with Section12.2. Any attempted assignment or transfer by any party not made in compliance with this Section12.1 shall be null and void. The parties to this Agreement acknowledge that clause(ii) of this Section12.1 relates only to absolute assignments and this Section12.1 does not prohibit assignments creating security interests, including, without limitation, (x)any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y)in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section12.3. The Administrative Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section12.3; provided, however, that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan."
"(c) Benefit of Certain Provisions. The Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section11.1 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents; provided that each Lender shall retain the right of setoff provided in Section11.1 with respect to the amount of participating interests sold to each Participant. The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section11.1, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with Section11.2 as if each Participant were a Lender. The Borrower further agrees that each Participant shall be entitled to the benefits of Sections3.1, 3.2, 3.4, 3.5 (subject to the requirements and limitations therein, including the requirements under Section3.5(f) (it being understood that the documentation required under Section3.5(f) shall be delivered to the participating Lender)), 9.5 and9.8 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section12.3; provided that a Participant (i)agrees to be subject to the provisions of Section2.20 as if it were an assignee under Sections 12.1 and 12.3 and (ii)shall not be entitled to receive any greater payment under Article III than the Lender who sold the participating interest to such Participant would have received had it retained such interest for its own account, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in any Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan Documents (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan Documents) to any Person except to the extent that such disclosure is necessary to establish that such Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan Documents is in registered form under Section5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register."
"Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in paragraph(b) below, shall be effective as provided in said paragraph(b)."
"This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the Assignor) and [Insert name of Assignee] (the Assignee). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), receipt of a copy of which is hereby acknowledged by the Assignee. The Terms and Conditions set forth in Annex1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full."
"Radian Group Inc., a Delaware corporation (the Borrower), promises to pay to [] (the Lender) the aggregate outstanding principal amount of all Loans made by the Lender to the Borrower pursuant to Section2.1(a) of the Agreement (as hereinafter defined), in immediately available funds at such place as the Administrative Agent may specify from time to time, together with interest on the unpaid principal amount hereof at the rates and on the dates set forth in the Agreement. The Borrower shall pay the outstanding principal of and accrued and unpaid interest on the Loans in full on the Facility Termination Date."
"1\. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment with respect to Revolving Loans of $[]."
"(b) The representations and warranties contained in Article V of the Credit Agreement are (x) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of the date of this Facility LC Application, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all respects on and as of such earlier date and (y) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of the date of this Facility LC Application, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects on and as of such earlier date."
"Officers Compliance Certificate was required to have been delivered shall be based on Pricing Level IV until such time as such Officers Compliance Certificate is delivered, at which time the Pricing Level shall be determined by reference to the Consolidated Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of the Borrower preceding such Calculation Date. The applicable Pricing Level shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Applicable Margin shall be applicable to all Extensions of Credit then existing or subsequently made or issued."
"(c) the aggregate of amounts applied pursuant to Sections 9.3(o), 9.6(e), 9.9(c)(ii) and 9.14 (or the corresponding provisions of the Existing Credit Agreement) during the Available Amount Reference Period for such date of determination; provided that if, during any Available Amount Reference Period, the aggregate amount applied pursuant to such Sections during such period exceeds the then applicable Rolling Basket, such excess shall be applied to permanently reduce the Cumulative Basket on a dollar-for-dollar basis."
"respect of L/C Obligations or Swingline Loans, cash or deposit account balances or, if the Administrative Agent and the applicable Issuing Lender and the Swingline Lender shall agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, such Issuing Lender and the Swingline Lender, as applicable."
"Consolidated Net Income means, for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its Restricted Subsidiaries for any period, there shall be excluded:"
"Consolidated Total Indebtedness means, as of any date of determination with respect to the Borrower and its Restricted Subsidiaries on a Consolidated basis without duplication, the sum of all Indebtedness of the Borrower and its Restricted Subsidiaries and excluding Indebtedness incurred in a Permitted A/R Financing solely to the extent such Indebtedness is non-recourse to any Credit Party."
"Immaterial Foreign Subsidiary means, as of any date of determination, any Foreign Subsidiary that, together with its Subsidiaries on a Consolidated basis, has (a)less than $10,000,000 in tangible assets and owned intellectual property (valued at the greater of book value or Fair Market Value) and (b)less than $10,000,000 in revenues (excluding intercompany revenues) for the period of four consecutive Fiscal Quarters most recently ended for which financial statements financial statements have been delivered pursuant to Section8.1(a) or 8.1(b); provided that any such Subsidiary that is initially an Immaterial Foreign Subsidiary shall cease to be an Immaterial Foreign Subsidiary from and after the date such Subsidiary, together with its Subsidiaries on a Consolidated basis, has (x)tangible assets and owned intellectual property (valued at the greater of book value or Fair Market Value) equal to or greater than $10,000,000 or (y)revenues (excluding intercompany revenues) equal to or greater than $10,000,000 for the period of four consecutive Fiscal Quarters most recently ended for which financial statements have been delivered pursuant to Section8.1(a) or 8.1(b)."
"L/C Commitment means, as to any Issuing Lender, the obligation of such Issuing Lender to issue Letters of Credit for the account of the Borrower or one or more of its Restricted Subsidiaries from time to time in an aggregate amount equal to (a)for the Initial Issuing Lender, $20,000,000 and (b)for any other Issuing Lender becoming an Issuing Lender after the Closing Date, such amount as separately agreed to in a written agreement between the Borrower and such Issuing Lender (which such agreement shall be promptly delivered to the Administrative Agent upon execution), in each case of clauses(a) and (b)above, any such amount may be changed after the Closing Date in a written agreement between the Borrower and such Issuing Lender (which such agreement shall be promptly delivered to the Administrative Agent upon execution)."
"Loan Documents means, collectively, this Agreement, each Note, the Letter of Credit Applications, the Security Documents, the Subsidiary Guaranty Agreement, the Fee Letter and the Amendment and Restatement Agreement, all as may be amended, restated, supplemented or otherwise modified from time to time, but for the avoidance of doubt excluding any Secured Hedge Agreement and any Secured Cash Management Agreement."
"Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document)."
"Revolving Credit Note means a promissory note made by the Borrower in favor of a Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form attached as Exhibit A-1, and any amendments, supplements and modifications thereto, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part."
"SECTION 1.8. Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor (at the time specified therefor in such applicable Letter of Credit or Letter of Credit Application and as such amount may be reduced by (a)any permanent reduction of such Letter of Credit or (b)any amount which is drawn, reimbursed and no longer available under such Letter of Credit)."
"(a) Availability. Subject to the terms and conditions of this Agreement and the other Loan Documents, including Section6.2(e), and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time from the Closing Date until, but not including, the Swingline Maturity Date; provided that (a)after giving effect to any amount requested, the Revolving Credit Outstandings shall not exceed the Revolving Credit Commitment and (b)the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount requested) shall not exceed the Swingline Commitment."
"(i) Swingline Loans shall be refunded by the Revolving Credit Lenders on demand by the Swingline Lender. Such refundings shall be made by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages and shall thereafter be reflected as Revolving Credit Loans of the Revolving Credit Lenders on the books and records of the Administrative Agent. Each Revolving Credit Lender shall fund its respective Revolving Credit Commitment Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon written demand by the Swingline Lender but in no event later than 2:00p.m. on the next succeeding Business Day after such demand is made. No Revolving Credit Lenders obligation to fund its respective Revolving Credit Commitment Percentage of a Swingline Loan shall be affected by any other Revolving Credit Lenders failure to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving Credit Lenders Revolving Credit Commitment Percentage be increased as a result of any such failure of any other Revolving Credit Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan."
"(a) Requests for Borrowing. The Borrower shall give the Administrative Agent irrevocable prior written notice substantially in the form of ExhibitB (a Notice of Borrowing) not later than 12:00 p.m. (i)on the same Business Day as each Base Rate Loan and each Swingline Loan, and (ii)at least threeBusiness Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A)the date of such borrowing, which shall be a Business Day, (B)the amount of such borrowing, which shall be, (x)with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof, (y)with respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (z)with respect to Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, (C)whether such Loan is to be a Revolving Credit Loan or Swingline Loan, (D)in the case of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E)in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be received by the Administrative Agent not later than 12:00 p.m. fourBusiness Days prior to the requested date of such borrowing, whereupon the Administrative Agent shall give prompt notice to the Revolving Credit Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. If the Borrower fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Base Rate Loans. If the Borrower requests a Borrowing of LIBOR Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. A Notice of Borrowing received after 12:00 p.m. shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the Revolving Credit Lenders of each Notice of Borrowing."
"(c) Other Fees, Costs, Charges and Expenses. In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary fees, costs, charges and expenses as are incurred or charged by such Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter of Credit issued by it."
"(ii) Asset Dispositions. The Borrower shall make mandatory principal prepayments of the Loans in the manner set forth in clause(iv) below in amounts equal to 100% of the aggregate Net Cash Proceeds from any Asset Disposition (other than any Asset Disposition permitted pursuant to, and in accordance with, clauses(a) through (e)and clause (g)of Section9.5) to the extent that the aggregate amount of such Net Cash Proceeds not reinvested as set forth below exceeds $25,000,000 during any Fiscal Year. Such prepayments shall be made within threeBusiness Days after the date of receipt of the Net Cash Proceeds of any such Asset Disposition by such Credit Party or any of its Restricted Subsidiaries; provided that, (A)no prepayment shall be required under this Section4.4(b)(ii) to the extent that such Net Cash Proceeds are committed to be reinvested pursuant to a legally binding agreement in assets used or useful in the business of the Borrower and its Restricted Subsidiaries within twelve months after receipt of such Net Cash Proceeds and are thereafter actually reinvested in assets used or useful in the business of the Borrower and its Restricted Subsidiaries within sixmonths; provided further that any portion of such Net Cash Proceeds not committed to be reinvested pursuant to a legally binding agreement within such twelve month period or actually reinvested within such six month period shall be prepaid in accordance with this Section4.4(b)(ii) immediately after the expiration of such twelve or sixmonth period, as applicable and (B)no prepayment shall be required under this Section4.4(b)(ii) to the extent such Net Cash Proceeds are attributable to an Asset Disposition of a Foreign Subsidiary so long as the Consolidated Total Leverage Ratio calculated on a Pro Forma Basis (after giving effect to such Asset Disposition) is less than the Specified Leverage."
"Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation."
"Agent forthwith on demand the amount so distributed to such Lender, Issuing Lender or the Swingline Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation."
"(A) Any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax;"
"(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x)with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN, or W-8BEN-E, as applicable (or any successor form), establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the interest article of such tax treaty and (y)with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN, or W-8BEN-E, as applicable (or any successor form), establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the business profits or other income article of such tax treaty;"
"(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section5.9) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);"
"(A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to (1)any Incremental Loan Commitment and (2)the making of any Incremental Loans pursuant thereto, provided that in connection with any Incremental Loan Commitment Incurred to finance a Permitted Acquisitions, this clause (A)shall apply only to any Event of Default under Section10.1(a), (b), (i) or (j), but subject to, if agreed by the Incremental Lenders providing such Incremental Loan Commitment, customary SunGard protections or limited conditionality, as applicable;"
"(d) Notwithstanding anything to the contrary in this Section5.13, the parties acknowledge and agree that to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Incremental Revolving Credit Increase, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of each other existing Classand tranche."
"Credit or Swingline Loans were issued at a time when the conditions set forth in Section6.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and funded participations in Letters of Credit or Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swingline Loans owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments under the applicable Revolving Credit Facility without giving effect to Section5.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section5.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto."
"(b) Legal Opinion. The Administrative Agent shall have received a written opinion of Winston& Strawn LLP, special counsel for the Borrower and each other Credit Party, with respect to the Credit Parties, the Loan Documents and such other matters as the Administrative Agent shall reasonably request, which such opinion shall be addressed to the Administrative Agent, the Lenders and the Issuing Lenders and shall expressly permit reliance by permitted successors and assigns on customary matters)."
"(c) Notices. The Administrative Agent shall have received a Notice of Borrowing or Letter of Credit Application as applicable, from the Borrower in accordance with Section2.3(a), Section3.2 or Section4.2, as applicable. The submission by the Borrower of each Notice of Borrowing and each Letter of Credit Application after the Closing Date shall be deemed to be a representation and warranty by the Borrower that each of the statements set forth in Sections6.2(a) and 6.2(b) is true and correct as of the date of such notice."
"SECTION 7.1. Organization; Power; Qualification. Each Credit Party and each Restricted Subsidiary thereof (a)is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation (to the extent such concept is applicable in the relevant jurisdiction), (b)has the power and authority to own its Properties and to carry on its business as now being and hereafter proposed to be conducted and (c)is duly qualified and authorized to do business in each jurisdiction in which the character of its Properties or the nature of its business requires such qualification and authorization except in"
"SECTION 7.5. Compliance With Law; Governmental Approvals. Each Credit Party and each Restricted Subsidiary thereof (a)has all material Governmental Approvals required by any Applicable Law for it to conduct its business, (b)is in compliance with each material Governmental Approval applicable to it and in material compliance with all other Applicable Laws relating to it or any of its respective properties and (c)has timely filed all material reports, documents and other materials required to be filed by it under all Applicable Laws with any Governmental Authority and has retained all material records and documents required to be retained by it under Applicable Law, except in each case of clauses (a), (b) and (c)where the failure to have, comply or file would not reasonably be expected to have a Material Adverse Effect."
"(c) no Credit Party nor any Restricted Subsidiary thereof has received any written notice of any Environmental Claim that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Environmental Claim in connection with any of the properties owned, leased or operated by each Credit Party and each Restricted Subsidiary or the operations in connection therewith is currently pending and no Credit Party or any Restricted Subsidiary thereof has knowledge or reason to believe that a notice of Environmental Claim will be received or is being threatened or that there are any conditions or operations that could reasonably be expected to form the basis of an Environmental Claim at any of the properties owned, leased or operated by each Credit Party and each Restricted Subsidiary;"
"(a) Protect and preserve all Properties necessary in and material to the conduct of its business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such Property necessary for the conduct of its business, in each case except as such action or inaction would not reasonably be expected to result in a Material Adverse Effect."
"SECTION 8.14. Designation of Subsidiaries. The Board of Directors of the Borrower may at any time designate (or redesignate) any Subsidiary of the Borrower as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i)immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing (including after giving effect to the reclassification of Investments in, Indebtedness of and Liens on the assets of, the applicable Restricted Subsidiary or Unrestricted Subsidiary), (ii) after giving effect to such designation, the Borrower shall be in compliance with financial covenants set forth in Section9.15 (whether or not then in effect) calculated on a Pro Forma Basis as of the last day of the four consecutive Fiscal Quarter period most recently ended for which the Borrower has delivered financial statements pursuant to Section8.1(a) or 8.1(b), prior to such designation, (iii)each Subsidiary to be designated as unrestricted and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender thereof has recourse to any of the assets of the Borrower or any Restricted Subsidiary, (iv)no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary or if it is a Restricted Subsidiary for purposes of any Subordinated or unsecured Indebtedness and (v)no Unrestricted Subsidiary shall own any Equity Interests of any Restricted Subsidiary. The"
"designation of any Subsidiary of the Borrower as an Unrestricted Subsidiary shall constitute an Investment by the Borrower or its applicable Restricted Subsidiary therein at the date of designation in an amount equal to the portion of the Fair Market Value of the net assets of such Person attributable to the Borrowers or its applicable Restricted Subsidiarys equity interest therein as reasonably estimated by the Borrower (and such designation shall only be permitted to the extent such Investment is permitted under Section9.3). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making at the time of designation of any Investments, Indebtedness or Liens of such Subsidiary existing at such time. As of the Closing Date, there are no Unrestricted Subsidiaries."
"(e) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section9.3, to the extent that (i)such Indebtedness was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, (ii)neither the Borrower nor any Restricted Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii)the aggregate outstanding principal amount of such Indebtedness does not exceed $35,000,000 at any time outstanding;"
"(b) (i)any Non-Credit Party that is a Pledged Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Pledged Foreign Subsidiary, (ii)any Non-Credit Party that is a Foreign Subsidiary (other than any Pledged Foreign Subsidiary) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Non-Credit Party and (iii)any Non-Credit Party that is a Domestic Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Non-Credit Party that is a Domestic Subsidiary;"
"SECTION 9.13. Sale Leasebacks. Directly or indirectly become or remain liable as lessee or as guarantor or other surety with respect to any lease, whether an operating lease or a Capital Lease, of any Property (whether real, personal or mixed), whether now owned or hereafter acquired, (a)which any Credit Party or any Restricted Subsidiary thereof has sold or transferred or is to sell or transfer to a Person which is not another Credit Party or Restricted Subsidiary of a Credit Party or (b)which any Credit Party or any Restricted Subsidiary of a Credit Party intends to use for substantially the same purpose as any other Property that has been sold or is to be sold or transferred by such Credit Party or such Restricted Subsidiary to another Person which is not another Credit Party or Restricted Subsidiary of a Credit Party in connection with such lease."
"(a) The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise. No delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver of any Event of Default. No course of dealing between the Borrower, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default."
"(c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii)the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith (including any report provided to it by an Issuing Lender pursuant to Section3.8), (iii)the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv)the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v)the satisfaction of any condition set forth in Article"
"(i) to release any Lien on any Collateral granted to or held by the Administrative Agent, for the benefit of the Secured Parties, under any Loan Document (A)upon the termination of the Revolving Credit Commitment and payment in full of all Secured Obligations (other than (1)contingent indemnification obligations and (2)obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Lender shall have been made), (B)that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (C)if approved, authorized or ratified in writing in accordance with Section12.2;"
"Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agents authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty Agreement pursuant to this Section11.9. In each case as specified in this Section11.9, the Administrative Agent will, at the Borrowers expense, execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Subsidiary Guarantor from its obligations under the Subsidiary Guaranty Agreement, in each case in accordance with the terms of the Loan Documents and this Section11.9. In the case of any such sale, transfer or disposal of any property constituting Collateral in a transaction constituting an Asset Disposition permitted pursuant to Section9.5, the Liens created by any of the Security Documents on such property shall be automatically released without need for further action by any person."
"(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph(b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail as follows:"
"(ii) The Platform is provided as is and as available. The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Borrower Materials or the adequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower Materials. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Credit Party, any Lender or any other Person or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Credit Partys or the Administrative Agents transmission of communications through the Internet (including the Platform), except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Agent Party; provided that in no event shall any Agent Party have any liability to any Credit Party, any Lender, any Issuing Lender or any other Person for indirect, special, incidental, consequential or punitive damages, losses or expenses (as opposed to actual damages, losses or expenses)."
"SECTION 12.2. Amendments, Waivers and Consents. Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the Borrower; provided that no amendment, waiver or consent shall:"
"SECTION 12.4. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Lender, the Swingline Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such Issuing Lender, the Swingline Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing"
"(b) Submission to Jurisdiction. Each of the parties hereto irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by Applicable Law, in such federal court.Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.Each party hereto agrees that the Administrative Agent retains the right to bring proceedings against any Credit Party in the courts of any other jurisdiction solely in connection with the exercise of any rights under any Security Document."
"(i) Borrower shall conduct one or more modified Dutch auctions (each, an Auction) to repurchase all or any portion of the Term Loans, provided that, (A)notice of and invitation to the Auction shall be made to all Term Loan Lenders and (B)the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish which are consistent with this Section12.9(e) and are otherwise reasonably acceptable to Borrower, the Auction Manager and the Administrative Agent;"
"(iii) Following repurchase by Borrower pursuant to this Section12.9(e), the Term Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by Borrower), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (A)the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (B)the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement"
"SECTION 12.15. Severability of Provisions. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction."
"THIS COLLATERAL AGREEMENT IS SUBJECT TO THE PROVISIONS OF THE SECOND LIEN INTERCREDITOR AGREEMENT OF EVEN DATE HEREWITH AMONG WILMINGTON TRUST, NATIONAL ASSOCIATION, AS THE ADMINISTRATIVE AGENT UNDER THE CREDIT AGREEMENT, UMB BANK, NATIONAL ASSOCIATION, AS INITIAL OTHER FIRST PRIORITY LIEN OBLIGATIONS AGENT, AND UMB BANK, NATIONAL ASSOCIATION, AS TRUSTEE, AS SET FORTH MORE FULLY IN SECTION 5.17 HEREOF. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE SECOND LIEN INTERCREDITOR AGREEMENT."
"Notes Indenture Documents means (a)the Notes Indenture, the Second Lien Notes, the Notes Indenture Guarantees, this Agreement and the other Security Documents in respect of the Second Lien Notes and (b)any other related documents or instruments executed and delivered pursuant to the Notes Indenture or any such Security Document, in each case, as such documents or instruments may be amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness (as defined therein) under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof, in each case, to the extent any such refinancing, replacement or other restructuring is designated by the Issuers to be included in the definition of Notes Indenture Documents."
"(c) Subject to the provisions of Section5.18, upon delivery to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), (i)any Pledged Securities required to be delivered pursuant to the foregoing paragraphs(a) and (b)of this Section2.02 shall be accompanied by stock powers or note powers, as applicable, duly executed in blank or other instruments of transfer in form reasonably satisfactory to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) and by such other instruments and documents as the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) may reasonably request and (ii)all other property comprising part of the Pledged Collateral delivered pursuant to the terms of this Agreement shall be accompanied to the extent necessary to perfect the security interest in or allow realization on the Pledged Collateral by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents as the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be attached hereto asSchedule III(or a supplement toSchedule III, as applicable) and made a part hereof;providedthat failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered."
"(h) subject to Section5.17, the pledge effected hereby is effective to create in favor of the Agent, for the benefit of the Secured Parties, a legal, valid and enforceable (subject to (i)the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or similar laws affecting creditors rights generally and (ii)general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)) security interest in the Pledged Collateral as set forth herein."
"SECTION 2.05. Registration in Nominee Name; Denominations. Subject to the Second Lien Intercreditor Agreement, to the extent permitted by applicable Gaming Law, the First Lien Agent (or if the Termination Date has occurred, the Agent), on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Pledgor, endorsed or assigned in blank or in favor of the First Lien Agent (or if the Termination Date has occurred, the Agent) or, if an Event of Default shall have occurred and be continuing and it shall have provided the applicable Pledgor five (5)Business Days prior written notice, in its own name as pledgee or the name of its nominee (as pledgee or as sub- agent). Subject to the Second Lien Intercreditor Agreement, to the extent permitted by applicable Gaming Law, upon the occurrence and during the continuance of an Event of Default, each Pledgor will promptly give to the First Lien Agent (or if the Termination Date has occurred, the Agent) copies of any written notices or other written communications received by it with respect to Pledged Securities registered in the name of such Pledgor. Subject to the Second Lien"
"(c) Upon the occurrence and during the continuance of an Event of Default and after five (5)Business Days prior written notice by the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) to the relevant Pledgors of the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent)s intention to exercise its rights hereunder, subject to applicable Gaming Laws, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph(a)(i) of this Section2.06, and the obligations of the Agent under paragraph(a)(ii) of this Section2.06, shall cease, and all such rights shall thereupon become vested in the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), for the benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers;providedthat, unless otherwise directed by the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Company has delivered to the Agent a certificate to that effect, all rights of any Pledgor to exercise the voting and/or"
"(c) The Security Interest constitutes (i)a legal and valid security interest in all the Article9 Collateral securing the payment and performance of the Secured Obligations, (ii)subject to the filings and actions described in Section3.02(b), a perfected security interest in all Article9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document (together with the payment of applicable fees) in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other applicable law in such jurisdictions (to the extent which perfection may be achieved by such filings, recordings, or registrations (together with the payment of applicable fees)), and (iii)subject to Section3.02(b), a security interest that shall be perfected in all Article9 Collateral in which a security interest may be perfected upon the receipt and recording of the IP Security Agreement with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The Security Interest is and shall be a second priority security interest, prior to any other Lien on any of the Article9 Collateral, other than Liens in respect of Senior Lender Claims, and other Permitted Liens."
"(d) The Article9 Collateral is owned by the Pledgors free and clear of any Lien, other than Permitted Liens. Except to the extent permitted by the Notes Indenture, none of the Pledgors has filed or consented to the filing of (i)any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Article9 Collateral, (ii)any assignment in which any Pledgor assigns any Article9 Collateral or any security agreement or similar instrument covering any Article9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office or (iii)any assignment in which any Pledgor assigns any Article9 Collateral or any security agreement or similar"
"(a) Each Pledgor agrees promptly (and in any event within 10 days thereof, or such longer period of time as may be agreed by the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) to notify the Agent in writing of any change (i)in its legal name, (ii)in its identity or type of organization, (iii)in its Federal Taxpayer Identification Number or organizational identification number or (iv)in its jurisdiction of organization. Each Pledgor agrees promptly to provide the Agent with certified organizational documents reflecting any of the changes described in the immediately preceding sentence. Each Pledgor agrees not to effect or permit any change referred to in the first sentence of this paragraph(a) unless all filings have been made, or will have been made within any applicable statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Agent to continue at all times following such change to have a valid, legal and perfected second priority security interest in all the Article9 Collateral, for the benefit of the Secured Parties. Each Pledgor agrees promptly to notify the Agent if any material portion of the Article9 Collateral owned or held by such Pledgor is damaged or destroyed."
"(b) Subject to the rights of such Pledgor under the Notes Indenture Documents to dispose of Collateral, each Pledgor shall, at its own expense, use commercially reasonable efforts to defend title to the Article9 Collateral against all Persons and to defend the Security Interest of the Agent, for the benefit of the Secured Parties, in the Article9 Collateral and the priority thereof against any Lien that is not a Permitted Lien."
"decisions with respect thereto. In the event that any Pledgor at any time or times shall fail to obtain or maintain any of the policies of insurance required by the Notes Indenture Documents or to pay any premium in whole or part relating thereto, the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent, subject to the Second Lien Intercreditor Agreement) may, without waiving or releasing any obligation or liability of the Pledgors hereunder or any Event of Default, in its sole discretion, upon ten (10)Business Days prior written notice, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent, subject to the Second Lien Intercreditor Agreement) reasonably deems advisable. All sums disbursed by the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) in connection with this Section3.03(i), including reasonable and documented attorneys fees, court costs, expenses and other charges relating thereto, shall be payable, promptly following written demand, by the Pledgors to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) and shall be additional Secured Obligations secured hereby."
"The Agent shall give the applicable Pledgors 10 days written notice (which each Pledgor agrees is reasonable notice within the meaning ofSection9-611of the New York UCC or its equivalent in other jurisdictions) of the Agents intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a brokers board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Agent may (in its sole and absolute discretion) determine. The Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the"
"(a) No failure or delay by the Agent or any other Secured Party in exercising any right, power or remedy hereunder or under any other Notes Indenture Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies of the Agent and any other Secured Party hereunder and under the other Notes Indenture Documents are cumulative and are not exclusive of any rights, powers or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Pledgor therefrom shall in any event be effective unless the same shall be permitted by paragraph(b) of this Section5.09, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances."
"(e) A Pledgor shall automatically be released from its obligations hereunder and/or the security interests in any Collateral shall be automatically released, in each case, upon the occurrence of any of the circumstances set forth in Section11.04 of the Notes Indenture without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to any applicable Pledgor."
"SECTION 5.16. Additional Subsidiaries . Upon execution and delivery by the Agent and any Restricted Subsidiary that is required or permitted to become a party hereto by Section4.11 of the Notes Indenture or by any Other Second Lien Agreement of an instrument substantially in the form ofExhibitIhereto (or another instrument reasonably satisfactory to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) and the Issuers), subject to"
"Representative agree that upon the satisfaction of all conditions set forth in the preceding sentence, (x)the Agent shall act as agent under and subject to the terms of the Security Documents for the benefit of all Secured Parties, including without limitation, any Secured Parties that hold any such Other Second Lien Obligations, and (y)the Agent and each Authorized Representative agree to the appointment, and acceptance of the appointment, of the Agent as agent for the holders of such Other Second Lien Obligations as set forth in each Other Second Lien Secured Party Consent and agree, on behalf of itself and each Secured Party it represents, to be bound by this Agreement and the Second Lien Intercreditor Agreement. The rights and obligations of each party to this Agreement shall remain in full force and effect notwithstanding the addition of any new Secured Obligations to this Agreement."
"SECTION 5. Governing Law. This Agreement has been delivered and accepted in and shall be deemed to have been made in New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York."
"6609926 Thompson Coburn LLP - 17 - respect to any ""employee welfare benefit plan"" as defined in Section 3(1) of ERISA which covers retired employees and their beneficiaries; (e) Change of Name . Any change in the name of Borrower, any Subsidiary Bank, or any other Subsidiary; (t) Change in Place{s) of Business . Any proposed opening, closing or other change of the chief executive office of Borrower, or the main banking branch of any Subsidiary Bank ; (g) Environmental Matters . Receipt of any notice that the operations of Borrower, Subsidiary Bank or any other Subsidiary are not in full compliance with any of the requirements of any material Federal, state or local environmental, health or safety law, rule or regulation ; receipt of notice that Borrower, Subsidiary Bank or any other Subsidiary is subject to any Federal, state or local investigation evaluating whether any material remedial action is needed to respond to the release of any hazardous or toxic waste, substance or constituent or other substance into the environment ; or receipt of notice that any of the Properties or assets of Borrower, Subsidiary Bank or any other) are subject to an ""Environmental Lien . "" For purposes of this Section 5 . I 3 (g), ""E 11 viro 11 me 11 tal Lien"" mean a Lien in favor of any Regulatory Agency or other governmental entity, authority or official for ( 1 ) any liability under Federal, state or local environmental laws, rules or regulations or ( 2 ) damages arising from or costs incurred by any such governmental or regulatory agency, entity, authority or official in response to a release of a hazardous or toxic waste, substance or constituent or other substance into the environment, each in excess of $ 1 , 000 , 000 ; (h) Material Adverse Effect . The occurrence of any change in the business, operations or condition, financial or otherwise, of Borrower, Subsidiary Bank or any other Subsidiary that could have a Material Adverse Effect ; and (i) Regulatory Matters . The issuance of any cease and desist order against Borrower, Subsidiary Bank or any other Subsidiary and/or the entry of any memorandum of understanding or other agreement between Borrower, Subsidiary Bank or any other Subsidiary and any Regulatory Agency, regardless of whether the same is voluntary or involuntary if the impact of the same is adverse to Borrower, any Subsidiary Bank or any Subsidiary . 14. Utili za tion of Loan Proceeds . Utilize the proceeds of the Revolving Credit Loans solely for working capital purposes, to finance Distributions and to finance Permitted Acquisitions . Borrower will not request any Revolving Credit Loan, and will not use, and Borrower will ensure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Revolving Credit Loan in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti Corruption Laws . Borrower will not, directly or indirectly, use the proceeds of Revolving Credit Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Revolving Credit Loans, whether as underwriter, advisor, investor, or otherwise) . 15. Clean - Up Period Reduce the aggregate amount of outstanding Revolving Credit Loans to $0.00 for a period of 30 consecutive days at least one time during the Revolving Credit Period. SECTION 6 - NEGATIVE COVENANTS Borrower covenants and agrees that, as long as any of the Obligations are outstanding, it will not , and it will not cause or permit any Subsidiary Bank or any other Subsidiary to, without the prior written consent of Lender, not to be unreasonably withheld : 6 . 0 I Indebtedness . Create or incur any Indebtedness except (a) Indebtedness due Lender, (b) Indebtedness of a type consistent with that which exists as of the Effective Date, (c) Indebtedness of Subsidiary Banks to creditors in the ordinary course of its banking business, (d) Indebtedness relating to trust preferred securities issued by Borrower, (e) Indebtedness of an acquired institution in connection with a Permitted Acquisition and (t) Indebtedness under purchase"
"6609926 Thompson Coburn LLP - 23 - HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND BORROWER FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM . BORROWER HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT DOMICILES . BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS SET FORTH IN SECTION 8 . 07 . BORROWER AND LENDER IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH BORROWER AND LENDER ARE PARTIES . 9. Lender's Books and Records . Lender's books and records showing the account between Borrower and Lender shall be admissible in evidence in any action or proceeding and shall constitute prima facie proof thereof . 10. Governing Law : Amendments . This Agreement, the Notes, and all of the other Loan Documents shall be governed by and construed in accordance with the internal laws of the State of Missouri (without reference to conflict of law principles) but giving effect to Federal laws applicable to national banks . This Agreement and the other Loan Documents may not be changed, nor may any term, condition or Event of Default be waived, modified or discharged orally but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge is sought . 11. References : Headings for Convenience . Unless otherwise specified herein, all references herein to Section numbers refer to section numbers of this Agreement, and all references herein to Schedule 4 . 05 and 4 . 08 or Exhibit A and I! refer to attached Schedule 4 . 05 and 4 . 08 , or Exhibit A and I!, which are hereby incorporated herein by reference . The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Agreement . 12. Binding Agreement . This Agreement shall be binding upon and inure to the benefit of Borrower and its successors and Lender and its successors and assigns . Borrower may not assign or delegate any of its rights or obligations under this Agreement . 13. Severability . The provisions of this Agreement are intended to be severable . If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction . 14. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument . Delivery of an executed counterpart of a signature page of this Agreement by telecopy or e - mail shall be effective as delivery of a manually executed counterpart of this Agreement . 15. Resurrection of Obligations . To the extent that Lender receives any payment on account of any of the Obligations, and any such payment(s) or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, subordinated and/or required to be repaid to a trustee, receiver or any other Person under any bankruptcy act, state or Federal law, common law or equitable cause, then, to the extent of such payment(s) received, the Obligations or part thereof intended to be satisfied and any and all liens, security interests, mortgages, deeds of trust and/or other encumbrances upon or pertaining to any assets of Borrower and theretofore created and/or existing in favor of Lender as security for the payment of such the Obligations shall be revived and continue in full force and effect, as if such payment(s) had not been received by Lender and applied on account of the Obligations . 8 . I 6 Entire Agreement . This notice is provided pursuant to Section 432 . 047 , R . S . Mo . As used herein, ""borrower"" means Borrower, ""creditor"" means Lender and each of ""the credit agreement"" and ""this writing"" means this Agreement and the other Loan Documents . ORAL OR UNEXECUTED AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT"
"WHEREAS, this Security Agreement is entered into in connection with that certain Credit Agreement, dated as of September29, 2017 among the Borrower, Holdings, the lenders party thereto from time to time (the Lenders), and Jefferies Finance LLC, as the administrative agent (in such capacity, the Administrative Agent) and Collateral Agent (as amended, restated, supplemented, amended and restated or otherwise modified from time to time, the Credit Agreement); and"
"Computer Hardware and Software Collateral means (a)all computer and other electronic data processing hardware, integrated computer systems, central processing units, memory units, display terminals, printers, features, computer elements, card readers, tape drives, hard and soft disk drives, cables, electrical supply hardware, generators, power equalizers, accessories and all peripheral devices and other related computer hardware, including all operating system software, utilities and application programs in whatsoever form owned by a Grantor or leased or licensed to Grantor, (b)software programs (including both source code, object code and all related applications and data files), designed for use on the computers and electronic data processing hardware described in clause (a)above owned by a Grantor or leased or licensed to a Grantor, (c)all firmware associated therewith, (d)all documentation (including flow charts, logic diagrams, manuals, guides, specifications, training materials, charts and pseudo codes) with respect to such hardware, software and firmware described in the preceding clauses (a)through (c), and (e)all rights with respect to all of the foregoing, including copyrights (including renewal rights) and trade secret rights, contract rights of a Grantor with respect to all or any of the foregoing, licenses, options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications and any substitutions, replacements, improvements, error corrections, updates, additions or model conversions of any of the foregoing."
"Excluded Trademark Collateral means all United States intent to use trademark applications with respect to which the grant of a security interest therein would impair the validity or enforceability of said intent to use trademark application under federal law; provided, however, to the extent that such applicable Legal Requirement is no longer in effect, then such trademark application shall cease to be an Excluded Trademark Collateral and shall automatically be subject to the Lien and security interests granted hereby and to the terms and provisions of this Security Agreement as Collateral; provided further, that any Proceeds received by any Grantor from the sale, transfer or other disposition of Excluded Trademark Collateral shall constitute Collateral unless any Property constituting such Proceeds are themselves subject to the exclusions set forth above or otherwise constitute Excluded Collateral."
"(i)all equipment in all of its forms (including, but not limited to, all drilling platforms and rigs and remotely operated vehicles, trenchers, and other equipment used by any Grantor, vehicles, motor vehicles, rolling stock, vessels, aircraft) of such Grantor, wherever located, and all surface or subsurface machinery, equipment, facilities, supplies, or other tangible personal property, including tubing, rods, pumps, pumping units and engines, pipe, pipelines, meters, apparatus, boilers, compressors, liquid extractors,"
"(vii)all interest rate swap agreements, interest rate cap agreements and interest rate collar agreements, and all other agreements or arrangements designed to protect such Grantor against fluctuations in interest rates or currency exchange rates and all commodity hedge, commodity swap, exchange, forward, future, floor, collar or cap agreements, fixed price agreements and all other agreements or arrangements designed to protect such Grantor against fluctuations in commodity prices (including, without limitation, all Hedge Contracts);"
"SECTION 2.3.Continuing Security Interest; Transfer of Advances; Reinstatement. This Security Agreement shall create continuing security interests in the Collateral and shall (a)except as otherwise provided in the Credit Agreement, remain in full force and effect until the Termination Date, be binding upon each Grantor and its successors, transferees and assigns, and (c)inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and each other Secured Party and its respective permitted successors, transferees and assigns, subject to the limitations as set forth in the Credit Agreement. Without limiting the generality of the foregoing clause (c), any Lender may assign or otherwise transfer (in whole or in part) any Note, Advance or Commitment held by it as provided in Section9.07 of the Credit Agreement, and any successor or assignee thereof shall thereupon become vested with all the rights and benefits in respect thereof granted to such Secured Party under any Loan Document (including this Security Agreement), or otherwise, subject, however, to any contrary provisions in such assignment or transfer, and as applicable to the provisions of Section9.07 and Article VIII of the Credit Agreement. If at any time all or any part of any payment theretofore applied by the Collateral Agent or any other Secured Party to any of the Obligations is or must be rescinded or returned by the Collateral Agent or any such Secured Party for any reason whatsoever (including, without limitation, the insolvency, bankruptcy, reorganization or other similar proceeding of any Grantor or any other Person), such Obligations shall, for purposes of this Security Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued to be in existence, notwithstanding any application by the Collateral Agent or such Secured Party or any termination agreement or release provided to any Grantor, and this Security Agreement shall continue to be effective or reinstated, as the case may be, as to such Obligations, all as though such application by the Collateral Agent or such Secured Party had not been made."
"SECTION 2.9.Election of Remedies. Except as otherwise provided in the Credit Agreement, if any Secured Party may, under applicable Legal Requirements, proceed to realize its benefits under any of this Security Agreement or the other Loan Documents giving any Secured Party a Lien upon any Collateral, either by judicial foreclosure or by non-judicial sale or enforcement, such Secured Party may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Security Agreement. If, in the exercise of any of its rights and remedies, any Secured Party shall forfeit"
"SECTION 2.10.Lien Subordination. Notwithstanding anything herein to the contrary, it is the understanding of the parties that the Liens granted pursuant to Section2.1 herein shall, prior to the Discharge of First Lien Obligations, be subject and subordinate to the Liens granted to the First Lien Administrative Agent for the benefit of the holders of the First Lien Obligations (as defined in the Intercreditor Agreement) to secure the First Lien Obligations. All other rights and remedies of the Collateral Agent and the other Secured Parties are further subject to the provisions of the Intercreditor Agreement."
"SECTION 3.2.Ownership, No Liens, etc.. Such Grantor is the legal and beneficial owner of, and has good title to (and has full right and authority to pledge, grant and assign) the Collateral, free and clear of all Liens, except for any Permitted Liens and, subject to the Intercreditor Agreement, the Liens made pursuant to the First Lien Loan Documents. No effective UCC financing statement or other filing similar in effect covering all or any part of the Collateral is on file in any recording office, except those filed in favor of the Collateral Agent relating to this Security Agreement, the Liens made pursuant to the First Lien Loan Documents (subject to the Intercreditor Agreement), Permitted Liens or as to which a duly authorized termination statement relating to such UCC financing statement or other instrument has been delivered to the Collateral Agent on the Closing Date. This Security Agreement creates a valid security interest in the Collateral, securing the payment of the Obligations, and will constitute valid and perfected security interests (subject to Permitted Liens, any prior Lien under the First Lien Loan Documents and the provisions of the Intercreditor Agreement) in respect of Collateral in which a security interest may be perfected by filing a financing statement under the UCC in the applicable filing offices located in each Grantors location, as listed on Item A-1 of Schedule"
"(b)With respect to the Pledged Interests, no such Pledged Interests (i)are dealt in or traded on securities exchanges or in securities markets, (ii)expressly provide that such Pledged Interests are securities governed by Article 8 of the UCC, or (iii)are held in a Securities Account, except, with respect to this clause (b), Pledged Interests (A)for which the Collateral Agent is the registered owner or (B)with respect to which the Pledged Interests Issuer has agreed in an authenticated record with such Grantor and the Collateral Agent to comply with any instructions of the Collateral Agent without the consent of such Grantor."
"(ii)With respect to any Uncertificated Securities (other than Uncertificated Securities credited to a Securities Account) constituting Investment Property owned or held by any Grantor, such Grantor will (x)cause the Pledged Interests Issuer or other issuer of such securities to either (A)register the Collateral Agent (or the First Lien Administrative Agent, in accordance with the Intercreditor Agreement) as the registered owner thereof on the books and records of the issuer, or (B)execute a Control Agreement relating to such Investment Property pursuant to which the Pledged Interests Issuer or other issuer agrees to comply with the Collateral Agents instructions (or the First Lien Administrative Agents instructions, in accordance with the Intercreditor Agreement) with respect to such Uncertificated Securities without further consent by such Grantor"
"(i)that promptly upon receipt of notice of the occurrence and continuance of an Event of Default from the Collateral Agent and upon receipt of a written request therefor by the Collateral Agent, so long as such Event of Default shall continue, to deliver (properly endorsed where required hereby or requested by the Collateral Agent) to the Collateral Agent (or, prior to the Discharge of First Lien Obligations, the First Lien Administrative Agent, acting as gratuitous bailee on behalf of the Collateral Agent pursuant to the Intercreditor Agreement) all Distributions with respect to Investment Property, all interest principal and other cash payments on Payment Intangibles, the Pledged Property and all Proceeds of the Pledged Property or any other Collateral, in case thereafter received by such Grantor, in each case, to the extent such Distribution is not permitted under Section6.05 of the Credit Agreement, all of which shall be held by the Collateral Agent as additional Collateral; and"
"(e)No Grantor shall adjust, settle, or compromise the amount or payment of any Account, nor release wholly or partly any account debtor or obligor thereof, nor allow any credit or discount thereon; provided that, a Grantor may make such adjustments, settlements or compromises and release wholly or partly any account debtor or obligor thereof and allow any credit or discounts thereon so long as (i)such action is taken in the ordinary course of business and consistent with past practices, and (ii)such action is, in such Grantors good faith business judgment, advisable."
"(d)in no event will such Grantor or any of its agents, employees, designees or licensees file an application for the registration of any material Intellectual Property Collateral with the USPTO, the U.S. Copyright Office or any similar office or agency in any other country or any political subdivision thereof, unless such Grantor promptly informs the Collateral Agent, and upon request of the Collateral Agent (subject to the terms of the Credit Agreement), such Grantor shall execute and deliver all agreements, instruments and documents as the Collateral Agent may reasonably request to evidence the Collateral Agents security interest in such Intellectual Property Collateral;"
"(a)The Collateral Agent may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral) and also may (i)take possession of any Collateral not already in its possession without demand and without legal process, (ii)require any Grantor to, and each Grantor hereby agrees that it will, at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties, (iii)subject to applicable Legal Requirement or agreements with landlords, bailees or warehousemen enter onto the Property where any Collateral is located and take possession thereof without demand and without legal process, and (iv)without notice except as specified below, lease, license, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agents offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable. Each Grantor agrees that, to the extent notice of sale shall be required by Legal Requirement, at least ten (10)days prior notice to the applicable Grantor of the time and place of any public sale or the time of any private sale is to be made shall constitute reasonable notification; provided, however, that with respect to Collateral that is (x)perishable or threatens to decline speedily in value, or (y)is of a type customarily sold on a"
"SECTION 7.3.Amendments, etc. No amendment to or waiver of any provision of this Security Agreement, nor consent to any departure by any Grantor from its obligations under this Security Agreement, shall in any event be effective unless the same shall be in writing and signed by the Collateral Agent (on behalf of the Lenders or the Majority Lenders, as the case may be, pursuant to Section9.03 of the Credit Agreement) and such Grantor and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given."
"SECTION 7.10.Consent as Holder of Equity and as Pledged Interests Issuer. Each Grantor hereby consents to (a)the execution by each other Grantor of this Security Agreement and grant by each other Grantor of a security interest, encumbrance, pledge and hypothecation in all Pledged Interests and other Collateral of such other Grantor to the Collateral Agent pursuant hereto, (b)without limiting the generality of the foregoing, each Grantor consents to the transfer (subject to the terms of the Intercreditor Agreement) of any Pledged Interest to the Collateral Agent or its nominee pursuant to the terms of this Security Agreement following the occurrence and during the continuance of an Event of Default and to the substitution of the Collateral Agent"
"SECTION4. [The New Grantor][Each Specific Grantor] represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law))."
SECTION6. [The New Grantor][Each Specific Grantor] hereby agrees that the schedules attached to the Security Agreement are hereby supplemented by the corresponding schedules attached to this Supplement. [The New Grantor][Each Specific Grantor] hereby represents and warrants that the information provided in the schedules attached hereto are true and correct as of the date hereof.
"Anti-Corruption Laws means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business."
"Applicable Margin means, as of any date of determination and with respect to Base Rate Loans or LIBOR Rate Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Quarterly Average Excess Availability of Borrowers for the most recently completed quarter; provided, that for the period from the Closing Date through and including December 31, 2017, the Applicable Margin shall be set at the margin in the row styled Level 3:"
"Base Rate means the greatest of (a) the Federal Funds Rate plus %, (b) the LIBOR Rate (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis), plus one percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its prime rate, with the understanding that the prime rate is one of Wells Fargos base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero)."
"Eligible Credit Card Receivables means at the time of any determination thereof, each Credit Card Receivable that at all times satisfies the criteria set forth below and which has been earned by performance and represents the bona fide amounts due to a Borrower from a Credit Card Processor and/or Credit Card Issuer, and in each case originated in the ordinary course of business of such Borrower. Without limiting the foregoing, in order to be an Eligible Credit Card Receivable, an Account shall indicate no Person other than a Borrower as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual fees, discounts, claims or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Borrower may be obligated to rebate to a customer, a Credit Card Processor, or Credit Card Issuer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable. Except as otherwise determined by Agent in its Permitted Discretion, Eligible Credit Card Receivables shall not include any Credit Card Receivable:"
"(f) that is not subject to a perfected first priority security interest in favor of Agent, or with respect to which a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien, other than Liens granted to Agent and the Liens permitted under clauses (a) or (x) of the definition of Permitted Liens and any other Liens with respect thereto permitted under this Agreement that are subject to an intercreditor agreement, in form and substance satisfactory to Agent, between the holder of such Lien and Agent;"
"Eligible Re-Load Inventory means, as to each Borrower, Inventory of such Borrower (other than Eligible Domestic In-Transit Inventory or Eligible International In-Transit Inventory) which is located at a domestic warehouse owned and operated by a Person who is not an Affiliate of such Borrower pursuant to a contract for storage and/or handling between such Borrower and such Person and with respect to which:"
"Environmental Law means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time."
"Insolvency Law means any of (a) the Bankruptcy Code; and (b) the Bankruptcy and Insolvency Act (Canada); (c) the Companies Creditors Arrangement Act (Canada); (d) the Winding-Up and Restructuring Act (Canada); (e) corporate statutes, including the Canada Business Corporations Act (Canada) where such statute is used by a Person to propose an arrangement involving the compromise of the claims of creditors; and (e) any similar legislation in another jurisdiction, in each case as applicable and as in effect from time to time."
"Issuing Bank means Wells Fargo, Bank of America, N.A. or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lenders sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of this Agreement, and Issuing Bank shall be a Lender."
"Lender has the meaning set forth in the preamble to this Agreement, shall include Issuing Bank, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 13.1 of this Agreement and Lenders means each of the Lenders or any one or more of them."
"Lien means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing."
"Multiemployer Plan means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan Party or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability assuming a complete withdrawal from any such multiemployer plan."
"(f) if the Indebtedness that is refinanced, renewed, or extended was secured (i) such refinancing, renewal, or extension shall be secured by substantially the same or less collateral as secured such refinanced, renewed or extended Indebtedness on terms no less favorable to Agent or the Lender Group, taken as a whole, and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority more senior than the Liens securing such Indebtedness that is refinanced, renewed or extended."
"than 12.5% of the Line Cap, Agent shall give Administrative Borrower three (3) Business Days notice prior to establishing such a Reserve; provided, that, Agent shall not be required to provide any such notice with regard to (1) any further Reserves established or increased while Excess Availability remains less than 12.5% of the Line Cap or (2) with regard to any Reserve established or increased in connection with an event which either constitutes an Event of Default or could reasonably be expected to materially impair Agents liens on the Collateral or its ability to realize upon the Collateral."
"Sanctioned Person means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFACs consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or"
"Solvent means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Persons debts (including contingent liabilities) is less than all of such Persons assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is solvent or not insolvent, as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5)."
"is required to make available to Agent in immediately available funds and if Agent has made available to Borrowers such amount on the requested Funding Date, then such Lender shall make the amount of such Lenders Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agents Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lenders portion of such Borrowing for the Funding Date shall be for Agents separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrowers such amount, then that Lender shall be obligated to immediately remit such amount to Agent, together with interest at the Defaulting Lender Rate for each day until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such payment to Agent shall constitute such Lenders Revolving Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agents account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Revolving Loans composing such Borrowing."
"(i) Agent shall request settlement (Settlement) with the Lenders on a weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (A) for itself, with respect to the outstanding Extraordinary Advances, and (B) with respect to any Loan Partys or any of their Subsidiaries payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the Settlement Date). Such notice of a Settlement Date shall include a summary statement of the amount of outstanding Revolving Loans (including Extraordinary Advances) for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including Section 2.3(g)): (y) if the amount of the Revolving Loans (including Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lenders Pro Rata Share of the Revolving Loans (including Extraordinary Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including Extraordinary Advances), and (z) if the amount of the Revolving Loans (including Extraordinary Advances) made by a Lender is less than such Lenders Pro Rata Share of the Revolving Loans (including Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agents Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including Extraordinary Advances). Such amounts made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the amounts of the applicable Extraordinary Advances and shall constitute Revolving Loans of such Lenders. If any such amount is not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate."
"(C) if Borrowers cash collateralize any portion of such Defaulting Lenders Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting Lenders Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;"
"(G) Agent may release any cash collateral provided by Borrowers pursuant to this Section 2.3(g)(ii) to Issuing Bank and Issuing Bank may apply any such cash collateral to the payment of such Defaulting Lenders Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by Borrowers pursuant to Section 2.11(d). Subject to Section 17.14, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non- Defaulting Lenders increased exposure following such reallocation."
"(i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agents separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates."
"(a) Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the first day of the month following the date on which the applicable Lender Group Expenses were first incurred, or (ii) the date on which demand therefor is made by Agent (it being acknowledged and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the provisions of Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this subclause (ii)). Borrowers promise to pay all of the Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including Lender Group Expenses)) in full on the Maturity Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become due and payable pursuant to the terms of this Agreement. Borrowers agree that their obligations contained in the first sentence of this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations."
"(f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. Borrowers and the Lender Group, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, that anything contained herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrowers are and shall be liable only for the payment of such maximum amount as is allowed by law, and payment received from Borrowers in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess."
"amount of the Letter of Credit Usage during the immediately preceding month (or portion thereof), plus (ii) any and all other customary commissions, fees and charges then in effect imposed by, and any and all expenses incurred by, Issuing Bank, or by any adviser, confirming institution or entity or other nominated person, relating to Letters of Credit, at the time of issuance of any Letter of Credit and upon the occurrence of any other activity with respect to any Letter of Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations)."
"(i) Borrowers may, at any time and from time to time, so long as no Event of Default has occurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00 a.m. at least three Business Days prior to the commencement of the proposed Interest Period (the LIBOR Deadline). Notice of Borrowers election of the LIBOR Option for a permitted portion of the Revolving Loans and an Interest Period pursuant to this Section shall be made by delivery to Agent of a LIBOR Notice received by Agent before the LIBOR Deadline. Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to each of the affected Lenders."
"(c) Conversion; Prepayment. Borrowers may convert LIBOR Rate Loans to Base Rate Loans or prepay LIBOR Rate Loans at any time; provided, that in the event that LIBOR Rate Loans are converted or prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any prepayment through the required application by Agent of any payments or proceeds of Collateral in accordance with Section 2.4(b) or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, each Borrower shall indemnify, defend, and hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in accordance with Section 2.12 (b)(ii)."
"(a) At any time during the period from and after the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an Increase). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 (or such lesser amount as may be agreed to by Agent) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $75,000,000."
"(vii) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) as determined by Borrowers and reasonably satisfactory to Agent to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an Increase Joinder), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,"
"(ix) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board, and"
"(d) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the Pre-Increase Revolver Lenders) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the Post-Increase Revolver Lenders), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre- Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments."
"(e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount."
"(e) Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments, demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice of any Revolving Loans or any Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in any member of the Lender Groups or any Bank Product Providers power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement), any right to assert against any member of the Lender Group or any Bank Product Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to any member of the Lender Group or any Bank Product Provider, any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Borrowers rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of any Agent or Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations"
"Lease Obligations), all of their respective assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of such financial statements to the extent permitted hereby, other than minor defects in title (but excluding any Accounts or Inventory included in the Borrowing Base) that do not materially interfere with its ability to conduct its business as currently conducted and to utilize such property and assets for their intended purposes. All of such assets are free and clear of Liens except for Permitted Liens."
"(a) Except as set forth on Schedule 4.10, no Loan Party, none of their Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to any Pension Plan or Multiemployer Plan; provided, that if a Loan Party or any of its ERISA Affiliates maintains or contributes to a new Pension Plan or Multiemployer Plan after the Closing Date, Administrative Borrower shall amend such Schedule 4.10 on or prior to the date of becoming a party to or under such Pension Plan or Multiemployer Plan."
"(e) No liability to the PBGC (other than for the payment of current premiums which are not past due) by any Loan Party or ERISA Affiliate has been incurred or is reasonably expected by any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan, except in connection with the PBGC Funding Waiver Obligations and other funding obligations that require a Loan Party to increase the annual cash contribution by an amount greater than $3,000,000 in the aggregate after the Closing Date."
"4.19 Parent . Parent is a holding company and does not have any material liabilities, own any material assets or engage in any operations or business other than (a) the maintenance of its legal existence in compliance with applicable law, (b) the issuance of its Equity Interests to its shareholders, (c) the making of dividends or distributions on its Equity Interests, (d) the ownership of the Equity Interests of its Subsidiaries, including the Loan Parties, (e) the filing of registration statements, and compliance with applicable reporting and other obligations, under federal, state or other securities laws, (f) the performance of obligations under and compliance with its Organization Documents, or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit, including as a result of or in connection with the activities of its Subsidiaries, (g) the incurrence and payment of its operating and business expenses and any Taxes for which it may be liable (including reimbursement to Affiliates for such expenses paid on its behalf), (h) the execution and delivery of any Loan Documents to which it is a party and the performance of its obligations thereunder (and the acknowledgment of any related intercreditor agreement), (i) and intercompany Indebtedness with its Subsidiaries that is subject to the Intercompany Subordination Agreement and (j) legal, Tax and accounting matters in connection with any of the foregoing."
"4.20 Leases. Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting and no material default by the applicable Loan Party or its Subsidiaries exists under any of them."
"5.11 Formation of Subsidiaries. Each Loan Party will, at the time that any Loan Party forms any direct or indirect Subsidiary, acquires any direct or indirect Subsidiary after the Closing Date, within 15 Business Days of such event (or such later date as permitted by Agent in its sole discretion) (a) cause such new Subsidiary (i) if such Subsidiary is a Domestic Subsidiary and Administrative Borrower requests, subject to the consent of Agent, that such Domestic Subsidiary be joined as a Borrower hereunder, to provide to Agent a Joinder to this Agreement, and (ii) to provide to Agent a joinder to the Guaranty and Security Agreement, in each case, together with such other security agreements (including Mortgages with respect to any Real Property owned in fee by such new Subsidiary with a fair market value of greater than $10,000,000, provided that the applicable Subsidiary shall have 90 days to deliver such mortgage, as well as appropriate financing statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary); provided, that the Joinder, the joinder to the Guaranty and Security Agreement, and such other security agreements shall not be required to be provided to Agent with respect to any Subsidiary of any Loan Party that is a CFC, (b) provide, or cause the applicable Loan Party to provide, to Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement) and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary in form and substance reasonably satisfactory to Agent; provided, that only 65% of the total outstanding voting Equity Interests of any first tier Subsidiary of a Loan Party that is a CFC or a CFC Holdco (and none of the Equity Interests of any Subsidiary of such CFC or CFC Holdco) shall be required to be pledged, and (c) provide to Agent all other documentation, including the Governing Documents of such Subsidiary and one or more opinions of counsel reasonably satisfactory to Agent, which, in its opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance, flood certification documentation or other documentation with respect to all Real Property owned in fee and subject to a mortgage). Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall constitute a Loan Document. No Real Property shall be taken as Collateral unless Agent receive not less than 45 days prior written notice and each Lender confirms to Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Laws or as otherwise satisfactory to such Lender. At any time that any Real Property constitutes Collateral, no modification of a Loan Document shall add, increase, renew or extend any loan, commitment or credit line hereunder until the completion of flood due diligence, documentation and coverage as required by the Flood Laws or as otherwise satisfactory to all Lenders; provided, that any such Lender that does not complete such flood due diligence, documentation and coverage in a timely manner and consent to such modification shall be deemed a Non- Consenting Lender."
"5.16 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. Parent and each Loan Party will, and will cause each of its Subsidiaries to comply with all applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Parent and each of the Loan Parties and their Subsidiaries shall implement and maintain in effect policies and procedures designed to ensure compliance by Parent, the Loan Parties and their"
"(a) Each Borrower and each Guarantor shall, for financial reporting purposes, cause its, and each of its Subsidiaries (i) fiscal years to end on the dates set forth on Schedule 5.17 hereto as fiscal year ends, (ii) fiscal quarters to end on the dates set forth on Schedule 5.17 hereto as fiscal quarter ends and (iii) fiscal months to end on the dates set forth on Schedule 5.17 hereto as fiscal month ends."
"(d) in the event Loan Parties file a consolidated, combined, unitary or similar type income tax return with Parent, Loan Parties shall be permitted to make distributions to Parent to permit Parent to pay federal and state income taxes then due and payable, provided that the amount of such distribution shall not be greater than the amount of such taxes that would have been due and payable by Loan Parties and their relevant subsidiaries had Loan Parties not filed a consolidated, combined, unitary or similar type return with Parent,"
"(a) transactions (other than the payment of management, consulting, monitoring, or advisory fees) between such Loan Party or its Subsidiaries, on the one hand, and any Affiliate of such Loan Party or its Subsidiaries, on the other hand, so long as such transactions (i) are fully disclosed to Agent prior to the consummation thereof, if they involve one or more payments by such Loan Party or its Subsidiaries in excess of $5,000,000 for any single transaction or series of related transactions, and (ii) are no less favorable, taken as a whole, to such Loan Party or its Subsidiaries, as applicable, than would be obtained in an arms length transaction with a non-Affiliate,"
"8.9 Security Documents. If the Guaranty and Security Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid and perfected and, (except to the extent of Permitted Liens which are non-consensual Permitted Liens, permitted purchase money Liens or the interests of lessors under Capital Leases) first priority Lien on the Collateral covered thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement, or (b) with respect to Collateral the aggregate value of which, for all such Collateral, does not exceed at any time, $1,000,000;"
"8.13 Mortgage Loan Documents. There shall be (a) a payment default after giving effect to any applicable grace periods under the Mortgage Loan Documents with respect to a payment in an amount greater than $250,000 and such default is continuing for more than ten days or (b) an acceleration of the Mortgage Loan."
"10.1 Demand; Protest; etc. Each Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time held by the Lender Group on which any Borrower may in any way be liable."
"(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto."
"(h) Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the Register) on which it enters the name and address of each Lender as the registered owner of the Revolving Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a Registered Loan). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolving Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register."
"including (i) all interest, fees and other amounts that may be due in payable in respect thereof, (ii) an assumption of its Pro Rata Share of participations in the Letters of Credit and (iii) Funding Losses). If the Non-Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall not be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf of the Non-Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and Acceptance, the Non-Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Non-Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, shall be made in accordance with the terms of Section 13.1. Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Non-Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, hereunder and under the other Loan Documents, the Non- Consenting Lender, Tax Lender, Defaulting Lender or Affected Lender, as applicable, shall remain obligated to make the Non-Consenting Lenders, Tax Lenders, Defaulting Lenders or Affected Lenders, as applicable, Pro Rata Share of Revolving Loans and to purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of participations in such Letters of Credit."
"15.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers)."
"Liabilities; provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Persons gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a Revolving Loan or other extension of credit hereunder. Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lenders ratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrowers. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of Agent."
"been contemporaneously provided by such Loan Party or such Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from any Loan Party or its Subsidiaries, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lenders notice to Agent, whereupon Agent promptly shall request of Borrowers the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from such Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such statement to each Lender."
"(b) Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and shall promptly notify Agent and Administrative Borrower (or, in the case of a Participant, the Lender granting the participation only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction."
"of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in the case of a Participant, such Participant shall indemnify and hold the Lender granting the participation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of a Participant, to the Lender granting the participation), as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent (or, in the case of a Participant, to the Lender granting the participation only) under this Section 16, together with all costs and expenses (including attorneys fees and expenses). The obligation of the Lenders and the Participants under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent."
"17.15 Keepwell. Each Qualified ECP Borrower hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under the Guaranty and Security Agreement in respect of Hedge Obligations (provided, that, each Qualified ECP Guarantor shall only be liable under this Section 17.15 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 17.15, or otherwise under each Guaranty Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until payment in full of the Obligations. Each Qualified ECP Guarantor intends that this Section 17.15 constitute, and this Section 17.15 shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act."
"1.Appointment of Agent. The Specified Bank Products Provider hereby designates and appoints Agent, and Agent by its signature below hereby accepts such appointment, as its agent under the Credit Agreement and the other Loan Documents. The Specified Bank Products Provider hereby acknowledges that it has reviewed Sections 15.1 through 15.15 and Sections 15.17, 15.18 and 17.5 (collectively such sections are referred to herein as the Agency Provisions), including, as applicable, the defined terms used therein. Specified Bank Products Provider and Agent each agree that the Agency Provisions which govern the relationship, and certain representations, acknowledgements, appointments,"
"(a)THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK."
"(d)EACH BORROWER AND SPECIFIED BANK PRODUCTS PROVIDER EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY"
"4.Except as set forth on Schedule 3 attached hereto, the representations and warranties of Parent, Borrowers and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date)."
"Reference is hereby made to that certain Credit Agreement, dated as of [ ], 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the Credit Agreement), by and among BlueLinx Corporation, a Georgia corporation (BlueLinx), BlueLinx Florida LP, a Florida limited partnership (BFLP, and together with BlueLinx and those additional entities that hereafter become parties to the Credit Agreement as Borrowers in accordance with the terms thereof, each, a Borrower and individually and collectively, jointly and severally, the Borrowers), BlueLinx Holdings Inc., a Delaware corporation (Parent), BlueLinx Florida Holding No. 1 Inc., a Georgia corporation (BFH1), BlueLinx Florida Holding No. 2 Inc., a Georgia corporation (BFH2, and together with BFH1 and those additional entities that hereafter become parties to the Credit Agreement as Guarantors in accordance with the terms thereof, each, a Guarantor and individually and collectively, jointly and severally, the Guarantors), the lenders party thereto as Lenders (each of such Lenders, together with its successors and assigns, is referred to hereinafter as a Lender), Wells Fargo Bank, National Association, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, Agent), Wells Fargo Capital Finance, LLC (WFCF) and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers, WFCF and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint book runners, and Merrill Lynch, Pierce, Fenner & Smith Incorporated as syndication agent. Capitalized terms used herein, but not specifically defined herein, shall have the meanings ascribed to them in the Credit Agreement."
"This JOINDER AGREEMENT (this Agreement), is entered into as of , 20 , by and among , a (New Borrower), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (Wells Fargo), as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, Agent)."
", 20 (as amended, restated, supplemented or otherwise modified from time to time, the Intercompany Subordination Agreement), by and among [Parent,] [and] each of s Subsidiaries listed on the signature pages hereto as an obligor (such Subsidiaries, together with [and Parent], are referred to hereinafter each individually as a Obligor, and individually and collectively, jointly and severally, as Obligors) and Agent, each Obligor has agreed to the subordination of indebtedness of each other Obligor owed to such Obligor on the terms set forth therein;"
"3.Joinder of New Borrower to the Intercompany Subordination Agreement. By its execution of this Agreement, New Borrower hereby (a) agrees that from and after the date of this Agreement it shall be an Obligor under the Intercompany Subordination Agreement as if it were a signatory thereto and shall be bound by all of the provisions thereof, and (b) agrees that it shall comply with and be subject to all the terms, conditions, covenants, agreements and obligations set forth in the Intercompany Subordination Agreement. New Borrower hereby agrees that each reference to an Obligor or the Obligors in the Intercompany Subordination Agreement shall include New Borrower. New Borrower acknowledges that it has received a copy of the Intercompany Subordination Agreement and that it has read and understands the terms thereof."
"4.Joinder of New Borrower to the Fee Letter. By its execution of this Agreement, New Borrower hereby (a) agrees that from and after the date of this Agreement it shall be a Borrower party to the Fee Letter as if it were a signatory thereto and shall be bound by all of the provisions thereof, and (b) agrees that it shall comply with and be subject to all of the terms, conditions, covenants, agreements and obligations set forth in the Fee Letter applicable to Borrowers. New Borrower hereby agrees that each reference to Borrower or Borrowers in the Fee Letter shall include New Borrower. New Borrower acknowledges that it has received a copy of the Fee Letter and that it has read and understands the terms thereof."
"(i)a customary opinion of counsel regarding such matters as to New Borrower as Agent or its counsel may reasonably request, and which is otherwise in form and substance reasonably satisfactory to Agent (it being understood that such opinion shall be limited to this Agreement, and the documents executed or delivered in connection herewith (including the financing statement filed against New Borrower); and"
(b)Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
"(a)The exact legal name of each Loan Party, as such name appears in its certified certificate of incorporation, articles of incorporation, certificate of formation, or any other organizational document, is set forth in Schedule 1(a). Each Loan Party is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a). Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Loan Party that is a registered organization, the Federal Taxpayer Identification Number of each Loan Party and the jurisdiction of formation of each Loan Party. Each Loan Party has qualified to do business in the states listed on Schedule 1(a)."
"(c) consolidated financial statements (including the unaudited consolidating financial statements used to prepare the consolidated financial statements) of Parent, Borrowers and their Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications (including any (i) going concern or like qualification or exception, (ii) qualification or exception as to the scope of such audit, or (iii) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7 of the Agreement), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of shareholders equity, and, if prepared, such accountants letter to management), and"
"Biotest Debt Documents means (i) the Subordinated Loan Agreement, dated as of June 6, 2017, among BPC, ADMA BioManufacturing and ADMA Biologics, (ii) any and all promissory notes issued thereunder, and (iii) all other documents, instruments and agreements executed and delivered in connection with the transactions contemplated thereby (other than the BPC Agreements), in each case in effect as of the Closing Date or as amended, restated, supplemented or otherwise modified in accordance with the terms of the Subordination Agreement and the terms hereof."
"Collateral Access Agreement means an agreement in form and substance satisfactory to the Lender and Agent in their reasonable discretion pursuant to which a mortgagee or lessor of real property on which Collateral having a book value in excess of $200,000 is stored or otherwise located, or a warehouseman, processor or other bailee of inventory or other property owned by any Loan Party, acknowledges the Liens of the Agent and waives (or, if approved by the Agent, subordinates) any Liens held by such Person on such property, and, in the case of any such agreement with a mortgagee or lessor, permits the Agent reasonable access to and use of such real property during the continuance of an Event of Default to assemble, complete and sell any Collateral stored or otherwise located thereon."
"Governmental Authority means any nation or government, any state, province, municipality or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing."
"Hedging Obligation means, with respect to any Person, any liability of such Person under any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices. The amount of any Persons obligation in respect of any Hedging Obligation shall be deemed to be the incremental obligation that would be reflected in the financial statements of such Person in accordance with GAAP."
"Loan Documents means this Agreement, the Notes, the Collateral Documents, the Perfection Certificate delivered by the Loan Parties on or prior to the Closing Date (as supplemented pursuant to the terms of the Security Agreement), the Disclosure Letter, the BPC Subordination Agreement, Agent Fee Letter and all other documents, certificates, instruments and agreements delivered in connection with the foregoing, all as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof."
"Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment."
"Regulatory Authority means, with respect to any regulatory jurisdiction, any national, federal, supranational, regional, state, provincial or local governmental or regulatory authority, agency, department, bureau, commission, council or other government entity regulating or otherwise exercising authority with respect to the development, manufacture, Regulatory Approval, pricing approval, INDs, clinical trial applications, registrations, licensing or commercialization of a product in such regulatory jurisdiction."
"2.12.3 Warrant Issuance. As consideration for the agreements of the Lender hereunder, the Borrower agrees to issue and deliver to the Lender, for its own account, (a)on the Closing Date, the Warrants referred to in clause (a) of the definition of the term Warrants and (b)on the Tranche Two Funding Date, the Warrants referred to in clause (b) of the definition of the term Warrants."
"(h) Lien and Judgment Searches. Copies of uniform commercial code, tax lien and judgment search reports listing all effective financing statements, tax liens and equivalent filings and judgments filed against any Loan Party, with copies of all such filings, and copies of Patent, Trademark, Copyright and Internet Domain Name search reports conducted by the Borrower listing all effective collateral assignments in respect of such Intellectual Property filed with respect to any Loan Party, with copies of such collateral assignment documentation."
"5.1 Organization. Each Borrower and each of its Subsidiaries is a corporation validly existing and in good standing under the laws of its state of organization; and each Borrower and each of its Subsidiaries has all power and authority and all governmental approvals required for the ownership and operation of its properties and the conduct of its business as now conducted and as proposed to be conducted and is qualified to do business, and is in good standing (as applicable), in every jurisdiction where, because of the nature of its activities or properties, such qualification is required, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect."
"(a) Equity Interests. Section 5.8(a) of the Disclosure Letter sets forth, as of the Closing Date, the name and jurisdiction of incorporation or organization of, and the percentage of each class of Capital Stock owned by the Borrower or any other Subsidiary of any Borrower in (i) each Subsidiary and (ii) each joint venture in which the Borrower or any other Subsidiary owns any Capital Stock. All Capital Stock in each Subsidiary owned by the Borrower or any other Subsidiary is duly and validly issued and, in the case of each Subsidiary that is a corporation, are fully paid and non-assessable, and are owned by the Borrower, directly or indirectly through Wholly-Owned Subsidiaries. Each Loan Party is the record and beneficial owner of, and has good title to, the Capital Stock pledged by it to the Agent under the Collateral Documents, free of any and all Liens, rights or claims of other Persons, other than Liens created under the Collateral Documents and other Permitted Liens. Each Loan Party is the record and beneficial owner of, and has good title to, the Capital Stock pledged by it to the Agent under the Collateral Documents, free of any and all Liens, rights or claims of other persons, except the security interest created by the Collateral Documents, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such pledged Capital Stock."
"5.11 Margin Stock. No Loan Party or any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No portion of the Obligations is secured directly or indirectly by Margin Stock."
"5.14 Environmental Matters. The on-going operations of each Loan Party and each of its Subsidiaries comply in all respects with all Environmental Laws, except such non-compliance which could not (if enforced in accordance with Applicable Law) reasonably be expected to result in a Material Adverse Effect. Each Loan Party and each of its Subsidiaries have obtained, and maintain in good standing, all licenses, permits, authorizations and registrations required under any Environmental Law and necessary for their respective ordinary course operations, and each Loan Party and each of its Subsidiaries are in compliance with all terms and conditions thereof, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect. No Loan Party or any of its Subsidiaries or any of their respective properties or operations is subject to any outstanding written order from or agreement with any federal, state or local Governmental Authority, nor subject to any judicial or administrative proceeding, nor subject to any indemnification agreement respecting any Environmental Law, Environmental Claim or Hazardous Substance."
"(n) Each Loan Party and each of its Subsidiaries has maintained all of its rights to its Internet Domain Names in full force and effect, except that each Loan Party and each of its Subsidiaries may elect not to renew any Internet Domain Name the failure of which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect."
"(e) any other event (including (i) any violation of any Environmental Law or the assertion of any Environmental Claim, (ii) any violation or noncompliance with any Applicable Law or (iii) any breach or nonperformance of, or any default under, any contractual obligation of any Loan Party or any of its Subsidiaries), in all cases which could reasonably be expected to have a Material Adverse Effect."
"(b) Permit, and cause each other Loan Party to permit, at reasonable times during business hours and with reasonable prior notice, the Agent, the Lender, or any representative of the foregoing to: (i) inspect (at the sole expense of the Borrower) the properties and operations of the Borrower or any such Loan Party; provided that such inspections shall occur no more often than one every six months, unless an Event of Default has occurred and is continuing; (ii) visit any or all of its offices, to discuss its financial matters with its directors or officers and its independent auditors, if any (and the Borrower hereby authorizes such independent auditors, if any, to discuss such financial matters with the Lender or the Agent or any representative thereof), (iii) examine (and, at the expense of the Borrower, photocopy extracts from) any of its books or other records; and (iv)(A) inspect the Collateral and other tangible assets of the Borrower or any such Loan Party, (B) perform appraisals of the equipment and Real Estate of the Borrower or any such Loan Party, and (C) inspect, audit, check and make copies of and extracts from the books, records, computer data, computer programs, journals, orders, receipts, correspondence and other data relating to any Collateral, for purposes of or otherwise in connection with conducting a review, audit or appraisal of such books and records. Borrower will pay the Lender the reasonable out-of-pocket costs and expenses of any audit or inspection of the Collateral promptly after receiving the invoice; provided that Borrower shall not be required to reimburse the Bank for the foregoing expenses relating to more than one such inspection or audit in any calendar year unless an Event of Default has occurred and is continuing, in which event Borrower shall be required to reimburse Bank for any and all of the foregoing expenses. Notwithstanding anything contained in this Section 6.21(b) to the contrary, if an Event of Default shall have occurred and be continuing or the Lender believes in good faith that such inspections are necessary to preserve or protect the Collateral, then the Agent, the Lender, or any representative of the foregoing may take any of the actions specified in clauses (i) through (iv) of this Section 6.2(b) without prior notice to the Borrower, but shall endeavor in good faith to provide the Borrower subsequent notice."
"(b) Additional Subsidiaries. Without limiting the generality of the foregoing and except as otherwise approved in writing by the Lender, cause, and cause each of the Loan Parties to cause, each of their Subsidiaries (and with respect to any Subsidiary formed or acquired after the Closing Date, simultaneously with the formation or acquisition of such Subsidiary) to guaranty the Obligations and cause each such Subsidiary to grant to the Agent, for the benefit of the Lender, a first priority security interest in all of such Subsidiarys property to secure such guaranty, subject to no Liens other than Permitted Liens, in each case pursuant to the execution and delivery of a joinder to the Security Agreement and such other documents as may be reasonably requested by and in form and substance reasonably satisfactory to the Lender. Furthermore and except as otherwise approved in writing by the Lender the Borrower shall, and shall cause each of its Subsidiaries (including, any such Subsidiary formed or acquired after the Closing Date) to, pledge (i) all of the Capital Stock of each of its Subsidiaries that are not CFCs and (ii)(A) all of the nonvoting Capital Stock of each of its Subsidiaries that are CFCs, and (B) 65% of the voting Capital Stock of each of its Subsidiaries that are CFCs if the pledge of a greater percentage of such voting Capital Stock could reasonably be expected to result in a material adverse tax consequence for the Borrower under Section 956 of the IRC (and 100% of such voting Capital Stock if no such material adverse tax consequence could reasonably be expected) to the Agent, for the benefit of the Lender, to secure the Obligations, in each case pursuant to documents in form and substance reasonably satisfactory to the Lender. In connection with each pledge of Capital Stock that is certificated, the Borrower and each other Loan Party shall simultaneously with the execution of the foregoing pledge documentation deliver, or cause to be delivered, to the Agent, irrevocable proxies and stock powers and/or assignments, as applicable, duly executed in blank, in each case pursuant to documents in form and substance satisfactory to the Lender."
"(e) Registered Intellectual Property. The Borrower shall (i)take any and all actions, and prepare, execute, deliver and file any and all agreements, documents and instruments, that are necessary to preserve and maintain the Registered Intellectual Property, including payment of applicable maintenance fees or annuities, and (ii) prosecute any corrections, substitutions, reissues, reviews and reexaminations of Patents included in the Registered Intellectual Property."
"6.12 Bankruptcy. In the event any bankruptcy case is filed by any Borrower, such case shall be filed in the Bankruptcy Court for the District of Delaware (the Delaware Court) and Borrower acknowledges that exclusive venue in the District of Delaware is appropriate based on, among other things (i) each Borrowers desire that such case be filed in the Delaware Court, (ii) the fact that the Delaware Court constitutes a convenient jurisdiction for each Borrower and those of its creditors and witnesses which or who would be required to appear in connection with any such bankruptcy case; (iii) the fact that public interest favors administration of any such bankruptcy case in the Delaware Court; and (iv) the fact that practical considerations support venue in the Delaware Court."
"(b) Debt in respect of Capital Leases and purchase money Debt, in each case incurred in the ordinary course of business for the purpose of financing all or any part of the cost of acquiring, repair, construction or improvement of fixed or capital assets; provided that (i) the aggregate principal amount of all such Debt at any time outstanding shall not exceed $2,750,000 and (ii) the principal amount of such Debt does not exceed the lower of the cost or fair market value of the property so acquired or built or of such repairs or improvements financed with such Debt (each measured at the time of such acquisition, repair, improvement or construction is made;"
"7.3 Restricted Payments. Not, and not suffer or permit any Loan Party or any other Subsidiary to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any Capital Stock or Stock Equivalent, (ii) purchase, redeem or otherwise acquire for value any Capital Stock now or hereafter outstanding (including the Capital Stock that comprises any Investment in a joint venture in which a Subsidiary is a stockholder or partner) or (iii) make any payment or prepayment of principal of, premium, if any, interest, fees, redemption, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, Debt that is subordinated by its terms to the payment of the Obligations (the items described in clauses (i), (ii) and (iii) above are referred to as Restricted Payments), except:"
"(m) the build out, construction or acquisition by the Borrower of blood plasma collection centers in the United States (the Blood Center Acquisitions) so long as (A) the costs of such Blood Center Acquisitions do not exceed in the aggregate the lesser of (i) $3,000,000 and (ii) 150% of the average total cost per collection center incurred by Borrower in the build out of its existing FDA approved blood plasma collection centers; (B) the Borrower shall have provided the Lender and Agent not less than thirty (30) days written notice prior to the commencement or consummation of each such Blood Center Acquisition, as the case may be, (C) the Borrower shall have provided the Lender and Agent all such documentation relating to each such Blood Center Acquisition as the Lender or Agent shall reasonable request, (D) prior to the commencement or consummation of each such Blood Center Acquisition, as the case may be, the Borrower shall have taken, and have caused each other Loan Party and Subsidiary, as applicable, to have taken, all such action, including without limitation the execution and delivery to the Lender and Agent of all such documentation, as the Lender or Agent shall reasonably request to perfect the Agents first priority security interest in all assets (including, without limitation, real property) in which Borrower, any Loan Party or any Subsidiary has an interest or will acquire and interest in connection with each such Blood Center Acquisition."
"10.2 Notices. All notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown on Schedule 10.2 or at such other address as such party may, by written notice received by the other parties, have designated as its address for such purpose. Notices sent by facsimile or other electronic transmission shall be deemed to have been given when sent; notices sent to the Loan Parties by mail shall be deemed to have been given three (3) Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when delivered."
"10.4 Indemnification by the Borrower. In consideration of the execution and delivery of this Agreement by the Agent and the Lender and the agreement to extend the Commitments provided hereunder, the Borrower hereby agrees to indemnify, exonerate and hold the Agent, the Lender and each of the officers, directors, employees, Affiliates, controlling persons, advisors and agents of the Agent and the Lender (each, a Lender Party) free and harmless from and against any and all actions, causes of action, suits, losses, liabilities (including, without limitation, strict liabilities), obligations, damages, penalties, judgments, fines, disbursements, expenses and costs, including Legal Costs (collectively, the Indemnified Liabilities), incurred by the Lender Parties or asserted against the Lender Party by any Person (including in connection with any action, suit or proceeding brought by any Loan Party or any Lender Party) as a result of, or arising out of, or relating to the execution, delivery, performance, administration or enforcement of this Agreement or any other Loan Document, the use of proceeds of the Loans, or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party, except to the extent any such Indemnified Liabilities result from the applicable Lender Partys own gross negligence or willful misconduct, in each case as determined by a court of competent jurisdiction in a final, non-appealable determination. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under Applicable Law. All Obligations provided for in this Section 10.4 shall survive repayment of the Loan, cancellation of the Notes, any foreclosure under, or any modification, release or discharge of, any or all of the Collateral Documents and termination of this Agreement."
"10.19 Waiver of Jury Trial. EACH LOAN PARTY, THE AGENT AND THE LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY."
"Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered or managed by (a)a Lender, (b)an Affiliate of a Lender or (c)an entity or an Affiliate of an entity that administers or manages a Lender."
"Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in NewYork City are authorized or required by law to remain closed; provided that (a)when used in connection with a LIBOR Loan in any currency, the term Business Day shall also exclude any day on which banks are not open for dealings in deposits in such currency in the London interbank market and (b)when used in connection with a EURIBOR Loan, the term Business Day shall also exclude any day on which the TARGET payment system is not open for the settlement of payments in Euros."
"Class, when used in reference to (a)any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Incremental Term Loans of any Series, Revolving Loans or Swingline Loans, (b)any Commitment, refers to whether such Commitment is an Incremental Term Commitment of any Series or a Revolving Commitment and (c)any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class. Additional Classes of Loans, Borrowings, Commitments and Lenders may be established pursuant to Sections 2.21, 2.22 and 2.24."
"(x) costs or expenses related to (A)the Transactions (as defined in the Existing Credit Agreement and in this Agreement) and (B)any issuance of Equity Interests, any Investment, acquisition or Disposition outside the ordinary course of business, casualty or condemnation events, recapitalizations or the incurrence, extension, renewal, refinancing, repayment, prepayment, exchange of Indebtedness permitted to be incurred hereunder and any amendment or modification to the terms of any of the foregoing transactions,"
"Defaulting Lender means any Lender that (a)has failed, within two Business Days of the date required to be funded or paid, (i)to fund any portion of its Loans, (ii)to fund any portion of its participations in Letters of Credit or Swingline Loans or (iii)to pay to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenders good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Default) has not been satisfied, (b)has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c)has failed, within three Business Days after request by a Credit Party or the Company made in good faith to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)upon such Credit Partys receipt of such certification in form and substance satisfactory to it and the Administrative Agent and the Company, or (d)has become the subject of a Bankruptcy Event or a Bail-In Action (as defined in Section9.23) unless in the case of any Lender subject to this clause (d), the Company and the Administrative Agent shall each have determined that such Lender intends, and has all approvals required to enable it (in form and substance satisfactory to each of the Company and the Administrative Agent), to continue to perform its obligations as a Lender hereunder; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of (A)the ownership or acquisition of any Equity Interest in such Lender or its parent by any Governmental Authority or (B)in the case of any Lender or parent company which is a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Person is subject to home jurisdiction supervision if"
"Incremental Facility Agreement means an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Company, among the Company, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Term Commitments of any Series or Incremental Revolving Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section2.21."
"Investment means, with respect to a specified Person, (a)any Equity Interests, evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or any capital contribution or loans or advances (other than advances made in the ordinary course of business that would be recorded as accounts receivable on the balance sheet of the specified Person prepared in accordance with GAAP) to, Guarantees of any Indebtedness or other obligations of, or any other investment (including any investment effected by means of a merger, amalgamation or consolidation of a subsidiary of such Person or a transfer of property for consideration that is less than the fair value thereof (as determined reasonably and in good faith by a Financial Officer of the Company)) in, any other Person that are held or made by the specified Person and (b)the purchase or acquisition (in one transaction or a series of related transactions) of all or substantially all of the property and assets or business of any other Person or assets constituting a business unit, line of business, division or product line of any other Person. The amount, as of any date of determination, of (i)any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii)any Investment in the form of a"
"(o) pledges and deposits made or other security provided in the ordinary course of business to secure (i)liability for reimbursement or indemnity obligations to insurance carriers, (ii)leases, subleases, licenses or sublicenses of property otherwise permitted or not restricted under this Agreement and (iii)in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Company or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clauses (i)and (ii) above;"
"Plan means any employee pension benefit plan, as defined in Section3(2) of ERISA (other than a Multiemployer Plan), that is subject to the provisions of TitleIV of ERISA or Section412 of the Code or Section302 of ERISA, and in respect of which the Company or any of its ERISA Affiliates is (or, if such plan were terminated, would under Section4069 of ERISA be deemed to be) an employer as defined in Section3(5) of ERISA."
"Refinancing Indebtedness means, in respect of any Indebtedness (the Original Indebtedness), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a)the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount equal to the sum of (i)accrued and unpaid interest with respect to such Original Indebtedness, premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield premiums) incurred in connection with the relevant Refinancing Indebtedness and (ii)any existing commitments unutilized thereunder; (b)such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of the Company or any Subsidiary if the Company or such Subsidiary shall not have been (or, in the case of an after-acquired Subsidiary, shall not have been required to become pursuant to the terms of the Original Indebtedness) an obligor in respect of such Original Indebtedness (other than as expressly set forth in Section6.02(a)(iii), (a)(iv) or (a)(v)); and (c)such Refinancing Indebtedness shall not be"
"Revolving Commitment means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lenders Revolving Exposure hereunder, as such commitment may be (a)reduced from time to time pursuant to Section2.08, (b) increased from time to time pursuant to Section2.21 and (c)reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section9.04. The initial amount of each Lenders Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or the Incremental Facility Agreement pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders Revolving Commitments is $400,000,000."
"Sanctioned Person means, at any time, (a)any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State or by the United Nations Security Council, the European Union, any EU member state or Her Majestys Treasury of the United Kingdom, (b)any Person operating, organized or resident in a Sanctioned Country or (c)any Person owned or controlled by any such Person or Persons."
"SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a Revolving Loan or Revolving Borrowing) or by Type (e.g., a LIBOR Loan or LIBOR Borrowing) or by Classand Type (e.g., a LIBOR Revolving Loan or LIBOR Revolving Borrowing)."
"SECTION 1.05. Status of Obligations. (a)In the event that the Company or any other Loan Party shall at any time issue or have outstanding any Subordinated Indebtedness, the Company shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Loan Document Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness which would entitle the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Loan Document Obligations are hereby designated as senior indebtedness and as designated senior indebtedness under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness such that the Loan Document Obligations will have the benefits potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness."
"shall be denominated in dollars and shall be an ABR Loan; provided that, prior to the purchase of participations in such Swingline Loans pursuant to Section2.04(c), such Swingline Loans shall bear interest at a rate to be agreed between the Company and the Swingline Lender. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement; provided, further, that any such domestic or foreign branch or Affiliate making such Loan shall be treated as a Lender for purposes of this Agreement."
"SECTION 2.04. Swingline Loans. (a)Subject to the terms and conditions set forth herein, a Borrower may request and the Swingline Lender may, in its sole discretion, agree to make Swingline Loans denominated in dollars to the Borrowers from time to time during the Revolving Availability Period in an aggregate principal amount at any time outstanding that will not result in (i)the aggregate principal amount of the outstanding Swingline Loans exceeding $20,000,000 or (ii)the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans."
"(i)all provisions of such letter of credit application purporting to grant Liens in favor of the Issuing Bank to secure obligations in respect of such Letter of Credit shall be disregarded, it being agreed that such obligations shall be secured to the extent provided in this Agreement and in the Security Documents and (ii)in the event of any inconsistency between the terms and conditions of such letter of credit application and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control. If any letter of credit application or other document entered into by any Borrower with the applicable Issuing Bank relating to any Letter of Credit shall contain any representations or warranties, covenants or events of default not set forth in this Agreement or that are inconsistent herewith, such provisions shall be null and void (or reformed automatically) so as to eliminate any inconsistency. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each issuance, amendment, renewal or extension of any Letter of Credit the applicable Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (A)the LC Exposure will not exceed $50,000,000, (B) the portion of the LC Exposure attributable to Letters of Credit issued by any Issuing Bank shall not exceed the LC Commitment of such Issuing Bank unless such Issuing Bank shall otherwise consent in its sole discretion, (C)the Aggregate Designated Currency Revolving Exposure will not exceed the Aggregate Designated Currency Revolving Sublimit and (D)the Aggregate Revolving Exposure will not exceed the Aggregate Revolving Commitment. Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (l)of this Section."
"(i) Cash Collateralization. If (A)the Revolving Maturity Date shall occur or (B)any Event of Default shall occur and be continuing and, if any Loans are outstanding, the maturity of such Loans has been accelerated, then on the Revolving Maturity Date (in the case of the preceding clause (A)), or on the Business Day that the applicable Borrower receives notice from the Administrative Agent at the direction of a Majority in Interest of the Revolving Lenders demanding the deposit of cash collateral pursuant to this paragraph (in the case of the preceding clause (B)), each applicable Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 103% of the portion of the LC Exposure attributable to each Letter of Credit issued for the account of such Borrower and outstanding on such date, in the currency of such Letter of Credit, plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in clause(i) or (j)of ArticleVII. Each Borrower also shall deposit cash collateral in accordance with this paragraph as and to the extent required by Section2.11(b) or 2.20. Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made in the sole discretion of the Administrative Agent and at the Borrowers risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall, notwithstanding anything to the contrary in the Security Documents, be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to (i)the consent of a Majority in Interest of the Revolving Lenders and (ii)in the case of any such application at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect thereto, the remaining cash collateral shall be less than the aggregate LC Exposure of all the Defaulting Lenders), the consent of each Issuing Bank), be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived. If the Borrowers are required to provide an amount of cash collateral hereunder pursuant to Section2.11(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers to the extent that, after giving effect to such return, the Aggregate Designated Currency Revolving Exposure would not exceed the Aggregate Designated Currency Revolving Sublimit, the Aggregate Revolving Exposure would not exceed the Aggregate Revolving Commitment and no Event of Default shall have occurred and be continuing. If the Borrowers are required to provide an amount of cash collateral hereunder pursuant to Section2.20, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers as promptly as practicable to the extent that, after giving effect to such return, no Issuing Bank shall have any exposure in respect of any outstanding Letter of Credit that is not fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or the remaining cash collateral and no Event of Default shall have occurred and be continuing."
"(j) Designation of Additional Issuing Banks. The Company may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, executed by the Company, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i)such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii)references herein to the term Issuing Bank shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder."
"(k) Termination of an Issuing Bank. The Company may terminate the appointment of any Issuing Bank as an Issuing Bank hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i)such Issuing Bank acknowledging receipt of such notice and (ii)the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Company shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section2.12(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit."
"(l) Issuing Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i)periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii)reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on any Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iv)on any Business Day on which the applicable Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement and (v)on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank."
"(b) To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section2.03 if such Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of an executed written Interest Election Request. Each telephonic and written Interest Election Request shall specify the following information in compliance with Section2.02:"
"(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph(a) or (b)of this Sectiondelivered to the applicable Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 30days after receipt thereof. Notwithstanding the foregoing, no Lender or Issuing Bank shall be entitled to seek compensation for additional amounts or costs pursuant to this Section unless the certificate referred to in the immediately preceding sentence shall state that it is the general practice of such Lender or Issuing Bank at such time to seek compensation under similar circumstances from other similarly situated borrowers with credit agreements containing yield protection provisions that provide for such compensation."
"(b) If (i)any Lender requests compensation under Section2.15 or such Lender determines that it can no longer make or fund Loans, pursuant to Section2.14(b), (ii) any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section2.17, (iii) any Lender has become a Defaulting Lender or (iv)any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that under Section9.02 requires the consent of all the Lenders (or all the affected Lenders or all the Lenders of the affected Class) and with respect to which the Required Lenders (or, in circumstances where Section9.02 does not require the consent of the Required Lenders, a Majority in Interest of the Lenders of the affected Class) shall have granted their consent, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (y)terminate the applicable Commitments of such Lender, and repay all Loan Document Obligations of any Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender as of such termination date under one or more facilities or as the Company may elector (z)require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section9.04), all its interests, rights (other than its existing rights to payments pursuant to Section2.15 or 2.17) and obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all its interests, rights and obligations under this Agreement and the other Loan Documents as a Lender of a particular Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (A)the Company shall have received the prior written consent of the Administrative Agent (and, in circumstances where its consent would be required under Section9.04, each Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (B)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable, participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of a particular Class) from the assignee (in the case of such principal and accrued interest and fees) or a Borrower (in the case of all other amounts), (C)in the case of any such assignment and delegation resulting from a claim for compensation under Section2.15 or payments required to be made pursuant to Section2.17, such assignment will result in a reduction in such compensation or payments, (D)such assignment does not conflict with applicable law and (E)in the case of any such assignment and delegation resulting from the failure to provide a consent, the assignee shall have given such consent and, as a result of such assignment and delegation and any contemporaneous assignments and delegations and consents, the applicable amendment, waiver, discharge or termination can be effected. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the applicable Borrower to require such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the applicable Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto and such assignment shall be recorded in the Register and any such promissory note shall be deemed cancelled. Each Lender hereby irrevocably appoints the"
"Incremental Term Commitments, as applicable, being requested (it being agreed that (1)any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (2)any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld))."
"(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that, except as set forth in the penultimate sentence of this paragraph (c), no Incremental Commitments shall become effective unless (i)on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to"
"such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing, (ii)after giving effect to such Incremental Commitments and any related transaction, on a pro forma basis in accordance with Section1.04(b), the Company shall be in compliance with the covenants set forth in Sections6.11, 6.12 and 6.13 (in each case, calculated as of the last day of the then most recently ended fiscal quarter of the Company for which the financial statements have been delivered pursuant to Section5.01(a) or 5.01(b) and the period of four fiscal quarters then ended and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and the Company shall have delivered an officers certificate setting forth reasonably detailed calculations demonstrating such pro forma compliance, (iii)the Company shall make any payments required to be made pursuant to Section2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv)after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of the date of effectiveness thereof and (v)the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretarys certificates, officers certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Notwithstanding the foregoing, if any Incremental Commitments shall be established to finance a Permitted Acquisition or any Investment permitted hereunder, then, to the extent agreed by the Lenders providing such Incremental Commitments, customary Sungard or certain funds conditionality may be implemented with respect to the funding of such Incremental Commitments (but not the Commitments of other Lenders) in lieu of the conditions set forth in this paragraph (c). Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section."
"(b) An Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Company, each applicable Extending Lender and the Administrative Agent; provided that no Extension Permitted Amendment shall become effective unless (i)no Default shall have occurred and be continuing on the date of effectiveness thereof and (ii)the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretarys certificates, officers certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Loans and/or Commitments of the accepting Lenders as a new Class of loans and/or commitments hereunder; provided that, in the case of any Extension Offer relating to Revolving Commitments or Revolving Loans, except as otherwise agreed to by each Issuing Bank and the Swingline Lender, (A)the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swingline Loan as between the commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis as between the commitments of such new Class and the remaining Revolving Commitments and (B)the Revolving Availability Period and the Revolving Maturity Date, as such terms are used in reference to Letters of Credit or Swingline Loans, may not be extended without the prior written consent of each Issuing Bank and the Swingline Lender, as applicable."
"SECTION 3.06. Litigation and Environmental Matters. (a)Other than the contingencies and legal matters disclosed in the Companys periodic reports filed with the SEC, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or the Loan Documents that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect."
"Effect. No part of the proceeds of the Loans will be used, directly or, to the knowledge of the Company, indirectly, or otherwise made available (A)for any payments to any officer or employee of a Governmental Authority, or any Person controlled by a Governmental Authority, or any political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any applicable Anti-Corruption Laws or (B)to any Person for the purpose of financing the activities of any Person, or in any country or territory, that, at the time of such financing, is the subject of any Sanctions, except to the extent permitted for a Person required to comply with Sanctions."
"SECTION 3.10. ERISA. No ERISA Events have occurred or are reasonably expected to occur that could, in the aggregate, reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic 715) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by an amount that could reasonably be expected to result in a Material Adverse Effect the fair value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards Codification Topic 715) did not, as of the date or dates of the most recent financial statements reflecting such amounts, exceed the fair value of the assets of all such underfunded Plans by an amount that could reasonably be expected to result in a Material Adverse Effect."
"SECTION 3.14. Collateral Matters. The Collateral Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Pledged Equity Interests, andwhen the Pledged Equity Interests constituting certified securities (as defined in the Uniform Commercial Code) are delivered to the Administrative Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Collateral Agreement will constitute under the Uniform Commercial Code (to the extent a Lien may be perfected thereunder) a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Pledged Equity Interests, prior and superior in right to any other Person, other than Permitted Liens arising by operation of law and having priority over the Liens of the Administrative Agent on the Pledged Equity Interests."
"(d) The Collateral and Guarantee Requirement shall have been satisfied. The Administrative Agent shall have received a completed Perfection Certificate, dated the Effective Date and signed by an executive officer or a Financial Officer of the Company, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section6.02 or have been, or substantially contemporaneously with the initial funding of Loans on the Effective Date will be, released."
"On the date of any Borrowing (other than any conversion or continuation of any Loan) or the issuance, amendment to increase the amount thereof, renewal or extension of any Letter of Credit, the Company and each Borrowing Subsidiary shall be deemed to have represented and warranted that the conditions specified in paragraphs (a)and (b) of this Sectionhave been satisfied."
"(a) within 90days after the end of each fiscal year of the Company (or, so long as the Company shall be subject to periodic reporting obligations under the Exchange Act, by the date that the Annual Report on Form 10-K of the Company for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related consolidated statements of earnings, comprehensive earnings, equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the prior fiscal year, all audited by and accompanied by the opinion of PricewaterhouseCoopers LLC or another independent registered public accounting firm of recognized national standing (without a going concern or like qualification, exception or emphasis and"
"SECTION 5.04. Payment of Taxes and Other Obligations. The Company and each Subsidiary will pay its obligations, including Tax liabilities, before the same shall become delinquent or in default, except where (a)the validity or amount thereof is being contested in good faith by appropriate proceedings and the Company or such other Subsidiary has set aside on its books reserves with respect thereto to the extent required by GAAP or (b)the failure to make payment could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect."
"SECTION 5.08. Compliance with Laws and Certain Agreements. The Company and each Subsidiary will comply with all laws, including all orders of any Governmental Authority and Anti-Corruption Laws and applicable Sanctions, applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Company will maintain in effect and enforce policies and procedures designed to ensure compliance by the Company, its Subsidiaries and the respective directors, officers, employees and agents of the foregoing in all material respects with Anti-Corruption Laws and applicable Sanctions."
"SECTION 6.02. Liens. (a)None of the Company or any Subsidiary will create, incur, assume or permit to exist any Lien on any asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable and royalties) or rights in respect of any thereof, except (collectively Permitted Liens):"
"management, managers or consultants of the Company and its Subsidiaries, (vi)so long as no Default shall have occurred and be continuing at the time of the declaration of any dividend, distribution or other Restricted Payment, the Company may make Restricted Payments (in addition to those permitted under the preceding clauses (i)through (v)) in an aggregate amount not greater than the sum of (A) $25,000,000 plus (B) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as a single accounting period) commencing with the first day of the fiscal quarter immediately following the fiscal quarter in which the Effective Date occurred and ending on the last day of the most recent fiscal quarter for which financial statements of the Company shall have been delivered pursuant to Section5.01(a) or (b) (the sum of the amounts referred to in clauses (A)and (B) being referred to as the Restricted Payment Basket) minus (C)the aggregate amount of the Restricted Payment Basket utilized after the Effective Date under this clause (vi), clause (v)of paragraph (b)of this Section and paragraphs (c), (d) and (e)of Section6.04, (vii) so long as no Default shall have occurred and be continuing at the time of the declaration of any dividend, distribution or other Restricted Payment, the Company may make any Restricted Payment (in addition to those permitted under the preceding clauses (i)through (vi)) if after giving effect thereto and to any related incurrence of Indebtedness the Total Leverage Ratio and the Senior Secured Leverage Ratio, determined on a pro forma basis in accordance with Section1.04(b) as of the last day of the period of four consecutive fiscal quarters of the Company then most recently ended for which the financial statements have been delivered pursuant to Section5.01(a) or 5.01(b) shall be less than 2.75 to 1.00 and 2.25 to 1.00, respectively, (viii)to the extent constituting a Restricted Payment and not resulting in the receipt by holders of the Companys Equity Interests of consideration other than Equity Interests in any merged, amalgamated or consolidated entity, the consummation of any merger, amalgamation or consolidation permitted by Section6.03 and (ix)any Investment permitted by Section6.04 (other than as a result of clause (g)thereof and other than any Investment in Equity Interests of the Company). Neither the entry by the Company into, nor the performance by the Company of its obligations pursuant to, any Permitted Convertible Notes Hedging Agreement shall constitute a Restricted Payment prohibited by this Section6.08(a)."
"SECTION 6.09. Transactions with Affiliates. None of the Company or any Subsidiary will sell, lease, license or otherwise transfer any assets to, or purchase, lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a)transactions that are at prices and on terms and conditions not less favorable to the Company or such Subsidiary than those that would prevail in arms-length transactions with unrelated third parties (as determined in good faith by a Financial Officer of the Company), (b)transactions between or among the Company and its Subsidiaries otherwise permitted or not restricted under this Agreement, (c)any Restricted Payment permitted under Section6.08, (d)issuances by the Company of Equity Interests, and receipt by the Company of capital contributions, (e)compensation and indemnification of, and other employment arrangements with, directors, officers, employees, members of management, managers and consultants of the Company or any Subsidiary entered in the ordinary course of business (including any collective bargaining agreements, employment agreements, severance agreements or compensatory (including profit sharing) arrangements, any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights, and transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan or"
"such increase in the Senior Secured Leverage Ratio shall be in effect being called a Senior Secured Leverage Increase Period) (it being agreed that (i)the making of a Total Leverage Increase Election as provided in Section6.12 shall likewise constitute the making of a Senior Secured Leverage Increase Election as provided in this Section6.13 and (ii)the termination or expiration of a Total Leverage Increase Period as provided in Section6.12 shall likewise terminate such increase in the maximum Senior Secured Leverage Ratio whereupon, on the last day of the fiscal quarter during which such Total Leverage Increase Period has terminated or expired and on the last day of each fiscal quarter thereafter until another Senior Secured Leverage Increase Period has commenced as provided in this Section, the maximum Senior Secured Leverage Ratio shall be 3.25 to 1.00). If a Senior Secured Leverage Increase Election shall have been made under this Section, the Company may not make another Senior Secured Leverage Increase Election unless, following the termination or expiration of the most recent prior Senior Secured Leverage Increase Period, the Senior Secured Leverage Ratio as of the last day of at least two consecutive full fiscal quarters of the Company shall not have exceeded, 3.25 to 1.00."
"(l) one or more final judgments for the payment of money in an aggregate amount in excess of $35,000,000 (other than any such judgment covered by insurance to the extent the insurer has been notified and liability therefor has not been denied by the insurer), shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged, unpaid, unvacated, unbonded or unstayed pending appeal for a period of 60consecutive days during which execution shall not be effectively stayed, or, during such 60 day period, a judgment creditor shall legally take any action to sell material assets of the Company to collect any such judgment during such 60 day period;"
"In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph."
"The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section6.02(a)(iii), (iv), (v), (ix) or (x). The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agents Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral."
"(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lenders Commitment or Loans of any Class, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Company and the Administrative Agent otherwise consents (such consent not to be unreasonably withheld); provided that no such consent of the Company shall be required if an Event of Default has occurred and is continuing;"
"(iv) The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and records of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and, as to entries pertaining to it, any Issuing Bank or Lender, at any reasonable time and from time to time upon reasonable prior notice."
"SECTION 9.05. Survival. 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 Arrangers, the Syndication Agent, the Documentation Agent, any Issuing Bank, any Lender or any Affiliate of any of the foregoing may have had notice or knowledge of any Default or incorrect representation or warranty at the time any Loan Document is executed and delivered or any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement or any other Loan Document, in the event that, in connection with the refinancing or repayment in full of the credit facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Company (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a Letter of Credit outstanding hereunder for all purposes of this Agreement and the other Loan Documents, and the Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section2.05(d) or 2.05(f). The provisions of Sections2.15, 2.16, 2.17, 2.18(e) and 9.03 and ArticleVIII 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 provision hereof."
"(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each Borrower hereby irrevocably and unconditionally agrees that all claims arising out of or relating to this Agreement or any other Loan Document brought by it or any of its Affiliates shall be brought, and shall be heard and determined, exclusively in such NewYork State or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Syndication Agent, the Documentation Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or any of its properties in the courts of any jurisdiction."
"SECTION 9.19. Excluded Swap Obligations. Notwithstanding any provision of this Agreement or any other Loan Document, no Guarantee by any Subsidiary Loan Party under any Loan Document shall include a Guarantee of any Secured Obligation that, as to such Subsidiary Loan Party, is an Excluded Swap Obligation, and no Collateral provided by any Subsidiary Loan Party shall secure any"
"Excluded Swap Obligation means, with respect to any Subsidiary Loan Party, any Swap Obligation if, and to the extent that, the Guarantee by such Subsidiary Loan Party of, or the grant by such Subsidiary Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantors failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor becomes effective with respect to such related Swap Obligation."
"(d) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Security Document to add or remove any legend that may be required pursuant to any Pari Passu Intercreditor Agreement."
"This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective Date set forth below and is entered into by and between the Assignor (as defined below) and the Assignee (as defined below). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified, the Credit Agreement), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full."
" --- 1.Assignor:       2.Assignee:       [and is [a Lender] [an Affiliate/Approved Fund of [Identify Lender]]]1 3.Borrowers: Knowles Corporation, and the Borrowing Subsidiaries (as defined in the Credit Agreement) 4.Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative Agent under the Credit Agreement "
"The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI about Knowles Corporation and its subsidiaries and their securities) will be made available and who may receive such information in accordance with the Assignees compliance procedures and applicable laws, including Federal and state securities laws."
"6 | The Assignee must deliver to the Borrower all applicable Tax forms required to be delivered by it under Section 2.17(f) of the Credit Agreement. ---|--- 7 | No consent of the Administrative Agent is required for an assignment of any Incremental Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund. ---|--- 8 | No consent of the Company is required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or, if an Event of Default has occurred and is continuing, for any other assignment. ---|--- 9 | Required in the case of any assignment of all or any portion of a Revolving Commitment or any Lenders obligation in respect of its Swingline Exposure. ---|--- * * *"
"The Borrower hereby certifies that the conditions specified in paragraphs (a)and (b) of Section4.02 of the Credit Agreement have been satisfied and that, after giving effect to the Borrowing requested hereby, the Aggregate Revolving Exposure and the Aggregate Designated Currency Revolving Exposure (or, in each case any component thereof) shall not exceed the applicable maximum amount thereof (or, in each case the maximum amount of any such component) specified in Section2.01 or 2.04(a) of the Credit Agreement."
"Reference is made to the Credit Agreement dated as of October11, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Knowles Corporation (the Company), the Borrowing Subsidiaries party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Each capitalized term used but not defined herein shall have the meaning specified in the Credit Agreement."
"Reference is made to the Credit Agreement dated as of October11, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), Knowles Corporation, a Delaware corporation (the Company), the Borrowing Subsidiaries party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement."
"The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i)an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii)an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1)if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2)the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments."
"10\. Counterparts. This Amendment may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, but all of which constitute one instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto."
"Alternative Currency Sublimit means an amount equal to (a)with respect to Canadian Dollars, the lesser of the Revolving Credit Commitments and $10,000,000, (b)with respect to Australian Dollars, the lesser of the Revolving Credit Commitments and $10,000,000, (c)with respect to Singapore Dollars, the lesser of the Revolving Credit Commitments and $10,000,000 and (d)with respect to any other Alternative Currency pursuant to clause (b)of the definition thereof, the amount agreed to by the Administrative Agent, each L/C Issuer and the Revolving Credit Lenders with respect to such Alternative Currency. The Alternative Currency Sublimit is part of, and not in addition to, the Revolving Credit Commitments."
"Amendment No. 2 Incremental Term Commitment means, as to each Amendment No. 2 Incremental Term Lender, its obligation to make Amendment No. 2 Incremental Term Loans to the Borrower pursuant to Amendment No.2 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lenders name on Schedule II to Amendment No.2 under the caption Amendment No.2 Incremental Term Commitment. The aggregate Amendment No.2 Incremental Term Commitments of all Amendment No.2 Incremental Term Lenders shall be $150,000,000 on the Amendment No.2 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement."
"Amendment No. 4 Refinancing Term Commitment means, as to each Amendment No. 4 Refinancing Term Lender, its obligation to make Amendment No. 4 Refinancing Term Loans to the Borrower pursuant to Amendment No.4 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lenders name on Schedule I to Amendment No.4 under the caption Refinancing 2017 First Lien Term Loan Commitment. The aggregate Amendment No.4 Refinancing Term Commitments of all Amendment No.4 Refinancing Term Lenders shall be $182,687,500 on the Amendment No.4 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement."
"the express terms of such Indebtedness (and not by virtue of any fluctuation in the Eurocurrency Rate or Base Rate), less than the weighted average yield of (to be determined by the Administrative Agent, on the same basis as above) such Term Loans immediately prior to such refinancing, replacement or repricing, excluding in each case any refinancing, replacement or repricing of Term Loans in connection with a Change of Control transaction ~~or~~ , any Permitted Acquisition for an aggregate consideration in excess of $300,000,000 or any Qualifying IPO."
"Term Commitment means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section2.01(a)in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lenders name on Schedule 2.01 under the caption Term Commitment or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Commitment of all Term Lenders shall be $505,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement."
"(b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a Revolving Credit Loan) to the Borrower denominated in Dollars, Euros, Sterling or an Alternative Currency from time to time, on any Business Day until the Maturity Date of the Classof Revolving Credit Loans held by such Revolving Credit Lender under the Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lenders Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (a)the Total Revolving Credit Outstandings shall not exceed the aggregate Revolving Credit Commitments, (b)the Total Revolving Credit Outstandings denominated in any Alternative Currency shall not exceed the Alternative Currency Sublimit with respect to such Alternative Currency and (c)the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lenders Pro Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed such Lenders Revolving Credit Commitment. Within the limits of each Lenders Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section2.01(b), prepay under Section2.05, and reborrow under this Section2.01(b). Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans denominated in Dollars, Euros, Sterling or an Alternative Currency, as further provided herein."
"(b) Upon the formation or acquisition of any new direct or indirect Restricted Subsidiary other than an Excluded Subsidiary by any Loan Party (provided that each of (i)any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary and (ii)any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Restricted Subsidiary shall be deemed to constitute the acquisition of a Restricted Subsidiary for all purposes of this Section6.12), or upon the acquisition of any personal property (other than Excluded Property, as defined in the Security Agreement) or any Material Real Property by any Loan Party, which real or personal property, in the reasonable judgment of the Administrative Agent, is not already subject to a perfected Lien in favor of the Collateral Agent for the benefit of the Secured Parties, then the Borrower shall, in each case at the Borrowers expense:"
"Prepayments)(including, for the avoidance of doubt, any such Second Lien Prepayment which would have been required but for the payments required under this Section2.05(c))but in any event prior to making any such Second Lien Prepayment on such date. Notwithstanding the foregoing, the Borrower shall not be required to prepay the Advances under this Section2.05(c) with respect to any Second Lien Prepayment if each lender party to the Second Lien Credit Agreement has refused to accept such Second Lien Prepayment pursuant to Section2.04(b)(iii) of the Second Lien Credit Agreement. For the avoidance of doubt, receipt by the Administrative Agent or any Lender of any prepayment made pursuant to this Section2.05(c) shall not result in a waiver of any Event of Default then existing, including any Event of Default resulting from any Disposition not permitted under the terms of this Agreement, unless such waiver is made in accordance with Section9.03."
"as such refinancings and refundings would otherwise comply with Section6.02; provided that any refinancing or refunding of any Second Lien Debt shall be permitted under this clause (b)only to the extent not prohibited under the Intercreditor Agreement, (c)so long as no Advances are outstanding as of the date of such prepayment, prepayments made pursuant to Section2.04(b)(i) or Section2.04(b)(ii) of the Second Lien Credit Agreement, and (d)so long as no Event of Default exists or would result therefrom, other prepayments, redemptions, purchases, defeasances or other satisfaction of Indebtedness permitted hereunder not described in the immediately preceding clauses (a)through (c) subject to any applicable subordination or intercreditor agreements with respect thereto; provided that unless consented to by the Majority Lenders, no prepayments, redemptions, purchases, defeasances or other satisfaction of any Second Lien Debt which is prepaid pursuant to Section2.04(a) of the Second Lien Credit Agreement (or any other optional prepayment clause in the Second Lien Credit Agreement) shall be permitted under this clause (d)."
"(h)as of the Effective Date, no action, suit, investigation or other proceeding by or before any arbitrator or any Governmental Authority is threatened or pending and no preliminary or permanent injunction or order by a state or federal court has been entered in connection with this Agreement or any other Loan Document."
"/s/ Steven A. Hartman Name: |  | Steven A. Hartman Title: |  | Senior Vice President, Chief Financial Officer and Treasurer GUARANTORS: PENN VIRGINIA OIL& GAS CORPORATION PENN VIRGINIA OIL& GAS GP LLC PENN VIRGINIA OIL& GAS LP LLC PENN VIRGINIA MC CORPORATION PENN VIRGINIA MC ENERGY L.L.C. PENN VIRGINIA MC GATHERING COMPANY L.L.C. PENN VIRGINIA MC OPERATING COMPANYL.L.C. PENN VIRGINIA RESOURCE HOLDINGS CORP. | | ---|---|--- | EachBy: |  |"
"Bank of America Cash Collateral Agreement means that certain Cash Collateral Agreement dated as of September 29, 2017, among Bank of America, N.A. and Basic Energy Services, Inc., as the same may be amended, restated, supplemented or otherwise modified from time to time; provided that if any such amendment, restatement, supplement or modification is materially adverse to the Lenders, it shall require the consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), it being understood and agreed that any such amendment, restatement, supplement or modification that increases the obligations or liabilities of any Loan Party shall be deemed to be materially adverse to the Lenders."
"(l) Liens of the ABL Agent to secure the Indebtedness permitted by Section 7.02(m) hereof; provided, that, such Liens are secured solely by ABL Priority Collateral and subject to the Intercreditor Agreement Liens on the Bank of America Cash Collateral Account (including any and all securities, securities entitlements, financial assets, investment property, certificates of deposit, cash and other property held therein, including, without limitation, the certificates (or any other agreements or instruments), if any, representing such property and all options and other rights, contractual or otherwise, with respect thereto, and any interest or dividends thereon) securing the Bank of America Letters of Credit; provided that upon the occurrence of (x) a return by the beneficiary for cancelation or expiration of any Bank of America Letter of Credit, (y) a drawing upon any Bank of America Letter of Credit (giving effect to any reimbursement thereof) or (z) a reduction of the face amount of any Bank of America Letter of Credit, or if the amount on deposit in the Bank of America Cash Collateral Account otherwise exceeds the amount required pursuant to the Bank of America Cash Collateral Agreement, then in each of the foregoing cases the amount by which the amount on deposit in the Bank of America Cash Collateral Account exceeds the amount required to cash collateralize the Bank of America Letters of Credit then outstanding pursuant to the Bank of America Cash Collateral Agreement, after giving effect to such occurrence, shall be transferred to the Term Loan Proceeds Collateral Account or any other deposit account subject to a control agreement in favor of the Administrative Agent, in the case of clauses (x) or (y) above, immediately upon the availability of such excess amounts for return or release, and in the case of clause (z) above, at the earliest time such excess amounts are permitted to be released and are available pursuant to the Bank of America Cash Collateral Agreement;"
"(e) Pledges. The Administrative Agent shall have received evidence of the completion of all other actions that the Lenders may deem necessary or desirable in order to cause the Subordinated Note and the Equity Interests of Receivables Parent to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01 of the Credit Agreement), including (i) the issuance of the Subordinated Note in a form reasonably satisfactory to the Required Lenders and, to the extent the Subordinated Note is certificated, delivery to the Administrative Agent of (x) the Subordinated Note and corresponding note power and (y) a supplement to Schedule 3.5(c) of the Security Agreement reflecting a pledge of the Subordinated Note and (ii) delivery to the Administrative Agent of a supplement to Schedule 3.5(a) of the Security Agreement reflecting a pledge of all of the Equity Interests of Receivables Parent."
"Personal Information means information from or about an individual that is sufficient to identify such individual, including, but not limited to, an individuals: first and last name, home or other physical address; telephone number, including home telephone number and mobile telephone number, email address or other contact information; financial account number, government- issued identifier, or persistent identifier, such as IP address or other unique identifier with another piece of information that would permit the identification of a Person; list of contacts, provided that the list permitted specific identification of those on such list; sufficiently precise physical location; or any other information from or about an individual consumer that is combined with information from or about an individual that is sufficient to identify such individual."
"4.1. Organization and Qualification. D-Vasive is a corporation duly organized, validly existing and in good standing under the laws of the State of Wyoming. D-Vasive has all requisite power and authority to own, lease and license the Assets as such Assets are currently owned, operated, leased or licensed, and to operate the Business as such Business is currently operated."
"(b) In proceeding with the transactions contemplated hereby, D-Vasive (and its designees) are not relying upon any representation or warranty of Buyer or Parent, or any of its officers, directors, employees, agents or representatives thereof, except the representations and warranties set forth herein and the statements contained in Parents filings with the Securities and Exchange Commission."
"(a) D-Vasive has not collected Personal Information, including data collected from an IP address, web beacon, pixel tag, ad tag, cookie, JavaScript, local storage, Software, or by any other means, or from a particular computer, Web browser, mobile telephone, or other device or application, where such data is or may be used to identify or contact an individual, device, or application (including, without limitation, by means of an advertisement or content), or to predict or infer the preferences, interests, or other characteristics of the device or of a user of such device or application or is otherwise used to target advertisements or other content to a device or application or to a user of such device or application (Non-Personal Information). D-Vasive does not, and the Assets purchase do not provide for collection or utilization of, Personal Information or Non-Personal Information, nor perform in any manner when utilized by users as intended, any function that would collect Personal Information or Non-Personal Information from users of its Assets. D-Vasive has complied in all material respects with all Laws (which for such purposes shall include the policy of such third party apps markets that distribute D-Vasives apps) relating to: (i) the privacy of users of (including Internet or mobile users who view or interact with) the D-Vasive Offerings and all of the websites of D-Vasive, and (ii) the collection, use, storage, retention, disclosure, and disposal of any Personal Information or Non-Personal Information collected by D-Vasive, or by Third Parties acting on the D-Vasives behalf or having authorized access to the D-Vasives records. The privacy practices of D-Vasive concerning the collection, use, retention, disclosure, and disposal, of Personal Information or Non-Personal Information conform, and at all times have materially conformed, to all of the contractual commitments of D-Vasive including to viewers of the websites of the D-Vasive and users of (including Internet users who view or interact with) the D-Vasive Offerings and the contractual commitments of D-Vasive through which D-Vasive Offerings are offered. D-Vasive Offerings conform, and at all times have materially conformed to applicable Law and, to the extent subject thereto, to the Network Advertising Initiatives Self-Regulatory Code of Conduct (2008), the Digital Advertising Alliances Self-Regulatory Principles for Online Behavioral Advertising, and the Federal Trade Commissions Principles for the Self Regulation of Online Behavioral Advertising (2010). Except as required to process a transaction or provide the D-Vasive Offerings, D-Vasive has not disclosed, and does not have any obligation to disclose, any Personal Information or Non-Personal Information to any Third Party. D-Vasive and its websites and the D-Vasive Offerings, have made all disclosures to users or customers and obtained all necessary consents from users or customers required by applicable Law, and none of such disclosures made or contained in any of D-Vasives websites or in any such materials have been inaccurate, misleading or deceptive or in violation of any applicable Law. No Actions have been asserted or, to the knowledge of the Sellers, are threatened against D-Vasive by any Person alleging a violation of any Persons privacy, personal or confidentiality rights under the Privacy Policies or any applicable Law. Neither this Agreement nor the transactions contemplated by this Agreement, including any disclosures of data, will violate the Privacy Policies as they currently exist or as they existed at any time during which any of the Personal Information or Non-Personal Information was collected or obtained."
"(b) Buyer and Parent have duly and validly executed and delivered this Agreement. When this Agreement and each of the Collateral Agreements to which Buyer and Parent are or will be a party have been duly executed and delivered by Buyer and Parent and (assuming due execution by Sellers), this Agreement and each such Collateral Agreement to which they are parties will constitute valid and legally binding obligations of Buyer and Parent, enforceable against them in accordance with their respective terms, except as such agreements may be subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws and equitable principles relating to or affecting or qualifying the rights of creditors generally and general principles of equity."
"(e) For purposes of this Agreement, Buyer Confidential Information consists of all information, knowledge or data related to the Buyer and/or Parent or its business not in the public domain or otherwise publicly available which are treated as confidential by Buyer or Parent as of the date hereof, provided that Buyer Confidential Information shall not include information that: (i) enters the public domain or becomes publicly available, so long as neither Sellers nor any of its Affiliates, directly or indirectly, improperly causes such information to enter the public domain, (ii) after the date of this Agreement becomes known to Sellers or any of its Affiliates on a non- confidential basis from a source that is not prohibited from disclosing such information to Sellers or such Affiliate by a contractual or other legal duty owed to Buyer, or (iii) after the date of this Agreement is developed independently by Sellers or any Affiliate of Sellers without violation of this Agreement."
"7.1. Survival of Representations and Warranties. The representations and warranties of Buyer, Parent and Sellers contained in this Agreement or in any other certificate, writing or agreement delivered pursuant hereto or in connection herewith shall the survive the Closing Date for one (1) year, except (i) as to any matter as to which a good faith claim has been submitted in writing to the other Party describing the claim in reasonable detail before such date and identified as a claim for indemnification pursuant to this Article VII, (ii) as to any matter which is based successfully upon fraud with respect to which the cause of action shall expire only upon expiration of the applicable statute of limitations, and (iii) those representations and warranties set forth in Section 4.4(b) (title to the Assets), which shall survive for the applicable statute of limitations period, and Sections 4.8 (Taxes), and 4.10 (Environmental Matters), and 4.15 (Proprietary Rights), which shall survive until the expiration of the applicable statute of limitations."
"8.10. Limitations on Public Disclosure. No Party may issue any press release, or make any public announcement or filing with a Governmental Body, with respect to this Agreement or any Collateral Agreement without obtaining prior written consent of the other Party to the issuance of such press release, or the making of such public announcement or filing, and to the contents thereof, which shall not be unreasonably withheld or delayed; provided, that such Party may, without the prior consent of the other Party, issue such press release, or make such public statement or filing, as may upon the advice of counsel be required by Law if it has provided notice to and used reasonable efforts to consult with the other Party."
"8.11. No Third Party Beneficiaries. Nothing in this Agreement or the Collateral Agreements, express or implied, is intended to or shall constitute the Parties as partners or as participants in a joint venture. This Agreement and the Collateral Agreements are solely for the benefit of the Parties and, only to the extent provided in Article VII hereof, their respective Affiliates and employees, representatives, agents, directors, officers, partners or principals, as applicable, or their respective assigns, for whom the parties shall be entitled to enforce this Agreement, and no provision of this Agreement shall be deemed to confer upon any other Third Parties any remedy, claim, liability, reimbursement, cause of action or other right; provided however, Parent and Buyer understand and agree that D-Vasives designees shall have a right to receive the Common Shares constituting the Purchase Price. Within 90 days of closing, D-Vasive shall provide Buyer and Parent with written notice of the intended recipients of the shares of Common Stock and Parent shall use its best commercial efforts to honor such transfer request, including, without limitation, notice and any opinions of counsel to Parents transfer agent for its Common Stock and Sellers shall have the right to enforce such transfer request."
"|  | Escrow Shares| |  | Closing Shares|  ---|---|---|---|---|---|--- Louis Franco III|  | | 0| |  | | 1,500,000|  John Thomas Clore|  | | 0| |  | | 1,500,000|  Future Tense Secure Systems Inc.|  | | 4,760,000| |  | | 7,240,000|  Holders of D-Vasive, Inc. Convertible Notes|  | | 0| |  | | 8,800,000| Total|  | | 4,760,000| |  | | 19,040,000|  "
"(ii) for the period commencing on the Date of Termination and concluding twelve (12) months after the Date of Termination, the Company shall continue to provide health insurance coverage to the Executive and the Executives spouse and eligible dependents on the same basis such benefits were provided immediately prior to the Date of Termination (provided that such subsidized continuation coverage is subject to the filing of health care continuation coverage elections by the Executive, the Executives spouse and eligible dependents under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (COBRA);"
"(c) Death. If the Executives employment is terminated by reason of the Executives death, the Company shall pay or provide the Executives estate or beneficiaries with the Obligations and shall provide the health care continuation coverage to the Executives spouse and eligible dependents, if any, in accordance with the provisions of Paragraph 5(b)(ii) above, for the greater of the length of time defined in the applicable benefit plan or policy in effect at the time of the Executives death or a twelve (12) month period commencing as of the Date of Termination. In addition, all of the Executives outstanding Long Term Incentive Awards shall be treated as described in Paragraph 5(b)(iii) above in respect of a twelve (12) month period following the Date of Termination for purposes of this subparagraph (vi). The Obligations shall be paid to the Executives estate or beneficiary, as applicable, in the manner and at the time or times provided in Paragraph 5(a) above."
"(e) Cause; Other than for Good Reason. If the Company terminates the Executives employment for Cause, or the Executive terminates his employment without Good Reason, in either case, during the Employment Period, the Company shall pay or provide the Obligations to the Executive as set forth in Paragraph 5(a). In no event shall a termination without Good Reason by the Executive, as described in Paragraph 4(d), constitute a breach of this Agreement by the Executive."
"(D)the Company combines with another entity (by merger or otherwise) but, immediately after the combination, the stockholders of the Company immediately prior to the combination hold, directly or indirectly, 50% or less of the Company Voting Stock, other ownership interests of the combined entity, and any parent entity owning 100% of the Company Voting Stock or other ownership interests of such combined entity (there being excluded from the number of shares or other ownership interests held by such stockholders, but not from the voting stock of the combined entity, any shares or other ownership interests received by affiliates of such other entity in exchange for stock or other ownership interests of such other entity); or"
"provided in a separate written instrument relating to such investments and nothing contained in this Agreement, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind or a fiduciary relationship between the Company and the Employee or any other person. To the extent that any person acquires a right to receive payments under this Agreement such right shall be no greater than the right of an unsecured creditor."
"Executive shall not at any time make any statement, written or otherwise, that disparages or criticizes the Company or any related party. The Company (which, for this purpose, shall be limited to members of the Companys Board of Directors, and its Named Executive Officers) shall not at any time make any statement, written or otherwise, that disparages or criticizes Executive."
"(a)Standard Business Expenses. Executive shall be reimbursed for those reasonable expenses (as determined by the Company in accordance with then existing policies) necessarily incurred by Executive in the performance of the duties herein as are specifically approved by the Company and as verified by vouchers, receipts, or other evidence of expenditure and business necessity as from time to time required by the Company. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Code Section409A to the extent that such reimbursements are subject to Code Section409A, including, where applicable, the requirements that (i)the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (ii)the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iii)the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit."
"7.Restrictive Covenants. To induce the Company to enter into this Agreement and in recognition of the compensation to be paid to Executive pursuant to this Agreement, Executive agrees to be bound by the provisions of this Section7 (the Restrictive Covenants). These Restrictive Covenants will apply without regard to whether any termination or cessation of Executives employment is initiated by the Company or Executive, and without regard to the reason for that termination or cessation. All provisions of this Section7 shall survive the termination of this Agreement. "
"1.Covenant Not to Solicit Company Employees. During the term of this Agreement and for the Restricted Non-Solicitation Period, Executive agrees that Executive shall not directly or indirectly on Executives own behalf or on behalf or any other employer solicit any present employee of the Company to terminate their employment relationship with the Company. "
"12.Entire Agreement; Modification. This Agreement is the entire agreement of the parties with regard to Executives employment and all other agreements and understandings, whether written or oral, if prior hereto, are merged herein so that the provisions of any prior agreement(s), including without limitation, the Original Agreement, are void and of no further force and effect. This Agreement may not be modified except by a writing signed by both parties. "
"(a)No Admission of Liability. This Release is not to be construed as an admission of any violation of any federal, state or local statute, ordinance or regulation or of any duty owed by the Company to Executive. There have been no such violations, and the Company specifically denies any such violations."
"Term and Duties. ---|--- 1.1 Term. The Company does hereby hire, engage and employ the Executive beginning on April 4, 2016 (the Effective Date), and concluding on the last day of the Term (as such term is defined in Section 2) on the terms and conditions expressly set forth in this Agreement. The Executive does hereby accept and agree to such hiring, engagement, and employment, on the terms and conditions expressly set forth in this Agreement."
"(d) Fiscal Year 2017 Equity Grant. Executive will be eligible to receive an equity award in accordance with the Companys customary procedures pursuant to the annual equity award program. The exact amount and allocation of the award shall be made in the sole discretion of the Compensation Committee of the Board. The Board and the Compensation Committee reserve the right to reduce this award, particularly with respect to Performance Shares, due to the grant set forth in 3.3(a) above, and Executive acknowledges that such a reduction is likely to occur. Specific metrics that determine the actual number of shares granted annually will be subject to the limits contained in the Plan, as amended. ---|--- 3"
Termination. ---|--- 5.1 Termination by the Company. The Executives employment by the Company during the Term may be terminated at any time by the Company: (i) with Cause (as such term is defined in Section 5.5); or (ii) without Cause; or (iii) in the event of the Executives death; or (iv) in the event that the Board determines in good faith that the Executive has a Disability (as such term is defined in Section 5.5); or (v) in the event the Company provides Executive with a Notice of Non-Renewal.
"(c) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive materially breaches his obligations under Section 6 or any material obligation under any other agreement signed by the Executive and the Company or any of its Affiliates that imposes restrictions with respect to the Executives activities at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit; provided, however, that the Company shall have provided the Executive with written notice in accordance with Section 17 specifying with particularity the conduct that the Company contends constitutes such a breach and shall have provided the Executive with a reasonable period (not less than 30 days) in which to respond and/or to cure such alleged breach; and provided further that, if the Executive provides the release contemplated by Section 5.4, in no event shall the Executive be entitled to a Severance Benefit payment of less than $5,000, which amount the parties agree is good and adequate consideration, standing alone, for the Executives release contemplated by Section 5.4. ---|--- |"
"(b) The Executive agrees that the payments and benefits contemplated by Section 5.3 shall constitute the exclusive and sole remedy for any termination of his employment and the Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment. ---|--- |"
"(c) As used herein, Cause shall mean: (i) the willful and persistent failure by the Executive to substantially perform the Executives duties with the Company (other than any failure resulting from the Executives Disability); (ii) the engaging by the Executive in willful and persistent conduct that is injurious to the Company or its subsidiaries, monetarily or otherwise; (iii) the Executives refusal to follow a reasonable and lawful instruction from the Board after written notice and opportunity to comply; or (iv) the Executives conviction of (a) a felony or (b) a misdemeanor involving fraud, dishonesty, or moral turpitude; provided however that, with respect to items (i), (ii), and (iii) above, the Company must provide the Executive with written notice in accordance with Section 17 specifying with particularity the conduct that it contends constitutes Cause, plus the provision of the Cause definition that applies, and must provide the Executive a reasonable period (not less than 30 days) in which to respond and/or cure such alleged grounds to the Boards satisfaction; and provided further that the Executive shall thereafter be granted the opportunity within a reasonable period (not more than 30 days) to appear before the Board, with counsel, to address any such claimed grounds, during which period the Company may not implement such termination. ---|--- |"
"(g) As used herein, the term Person shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, and a governmental entity, or any department, agency or political subdivision thereof. ---|--- |"
"12. Severability. The parties desire that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement is found to be invalid, prohibited, or unenforceable under any present or future law, and if the rights and obligations of any party under this Agreement will not be materially and adversely affected thereby, such provision shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. To this end, the provisions of this Agreement are declared to be severable. Notwithstanding the foregoing, if such provision could be more narrowly drawn (as to geographic scope, period of duration or otherwise) so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction."
"5.2 Severance. In the event (a) the Company terminates Executives employment under this Agreement for any reason other than for Cause under Section 7, or (b) Executive terminates his employment under this Agreement for Good Reason (as defined below), Executive shall be entitled to receive (i) aggregate severance payments (Severance Payments), equal to 8-months (the Severance Period) of Executives then monthly base salary under Section 4.1, (ii) continued benefits under Sections 4.4 and 4.5 during the Severance Period; and (iii) continued vesting of the Option (if applicable) during the Severance Period. The Severance Payments shall be paid to Executive in periodic installments in accordance with the Companys regular payroll practices, provided Executive is then in compliance with his obligations under Section 8 of this Agreement."
"(c) Confidential Materials. All Confidential Materials are and shall remain the exclusive property of the Company. No Confidential Materials may be copied or otherwise reproduced, removed from the premises of the Company, or entrusted to any person or entity (other than the Personnel entitled to such materials by authorization of the Company) without prior written permission from the Company. Notwithstanding the foregoing, Executive may copy Confidential Information and remove such Confidential Information from the Companys premises to Executives residence, in each case, in the ordinary course of business in the discharge of Executives duties and obligations under this Agreement."
"(a) This Agreement shall be interpreted and administered in a manner so that any amount or benefit payable hereunder shall be paid or provided in a manner that is either exempt from or compliant with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder (and any applicable transition relief under Section 409A of the Code). Nevertheless, the tax treatment of the benefits provided under the Agreement is not warranted or guaranteed. Neither the Company nor its directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Executive as a result of the application of Section 409A of the Code."
"| (c)| The Executive agrees that during the period of time the Executive is retained to provide services to the Bank, and thereafter for a period of one year subsequent to the termination of Executives services to the Bank for any reason whatsoever (except where the employment of the Executive is terminated pursuant to Section 8), Executive will not enter the employ of, or have any interest in, directly or indirectly (either as executive, partner, director, officer, consultant, principal, agent or employee), any other bank or financial institution or any entity which either accepts deposits or makes loans (whether presently existing or subsequently established) and which has an office located, or establishes during the period of one year subsequent to the termination of Executives services to the Bank an office located, in Duval County, Florida or Ware County, Georgia or any county contiguous to these two counties; provided, however, that the foregoing shall not preclude any ownership by the Executive of an amount not to exceed 5% of the equity securities of any entity which is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and the shares of Bank common stock owned by the Executive at the time of termination of employment. ---|---|--- "
"| a.| Non-Competition. The Executive covenants and agrees that for the Restricted Period (as defined below), the Executive will not, in the United States or any other jurisdiction in which the Company, the Parent or their respective corporate controlled affiliates is engaged or has reasonably firm plans to engage in business, whether as a principal, investor, employee, consultant, independent contractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in association with any other person, firm, corporation, or business organization, work for, become employed by, engage in, carry on, provide services to, or assist in any manner (whether or not for compensation or gain) a person or entity that engages in any business in which the Company, the Parent, or any of their corporate controlled affiliates is engaged (a Competing Business), where Executives position or service for such Competing Business relates to Executives positions with or the types of services performed by the Executive for the Company, the Parent, or any of their corporate controlled affiliates, or is otherwise competitive with the Companys, the Parents, or any of their corporate controlled affiliates products or services provided, however, that the foregoing will not prohibit the Executive from (i) serving on a board of directors (or comparable bodies) of other entities where the Parent has given prior permission, (ii) after the occurrence of both a Change of Control (as defined in Section 11) and the termination of the Executives employment, being employed by (A) a campus-based institution of higher education that derives no more than twenty percent (20%) of its revenues from online education, provided, that the Executive is not predominantly engaged in supporting the online education, or (B) an online learning company that does not provide higher education, or (iii) serving as a faculty member, scholar in residence or similar academic position, provided, that the Executive does not engage in administrative matters, other than to a de minimis extent. Notwithstanding the foregoing, the ownership by the Executive of less than one percent (1%) of the outstanding stock of any corporation listed on a national securities exchange shall not be deemed a violation of this Section8(a). For purposes of the foregoing, the Restricted Period means the period during the Executives employment hereunder and (x) for a period of one (1)year thereafter (to the extent permitted by law), or (y) in the event of a termination by the Executive of her employment after July 1, 2017 for other than Good Reason, and provided that within thirty (30) days of notice by the Executive of such termination the Company does not notify the Executive that the Company had grounds for termination of the Executives employment for Cause, for a period until the later of six (6) months after such termination or July 1, 2018. ---|---|--- "
"| ii.| any material failure by the Company to comply with any of the provisions of this Agreement, other than an isolated, insubstantial and inadvertent failure which is remedied by the Company or Parent promptly after receipt of notice thereof given by the Executive, provided, that in no event will a failure to pay the Annual Bonus by March 15 of the year following the performance year be considered a material failure by the Company or Parent to comply with this Agreement; ---|---|--- "
"| c.| If the Company terminates the Executives employment for Cause as provided in Section 9(b)(ii) hereof or if the Executive terminates the Executives employment other than for Good Reason, the Company shall pay the Executive the Base Amounts, and the Company shall have no further obligations to the Executive under this Agreement. ---|---|--- "
"| ii.| an amount equal to the sum of (A)the Executives Base Salary and (B)the Annual Bonus (to the extent Company and Executive performance were satisfying the performance targets, adjusted for the short period, after the Date of Termination to the end of the calendar year for an Annual Bonus and as to the remainder of the eighteen (18)-month period following the Date of Termination, only if net income has increased from the same period in the prior year and the performance targets established for the successor President of the Company were being satisfied for that period), in substantially equal proportionate installments in accordance with the Companys normal payroll practices for a period of eighteen (18) months, commencing within sixty (60) days following Executives Date of Termination, provided, that if Executives Date of Termination occurs within sixty (60) days prior to the end of a calendar year, payments will commence in the year after the Date of Termination, and in all cases, the first payment shall include all payments Executive would have received if payments had been continuous after the Date of Termination; ---|---|--- "
"| c.| If to the Executive, to the Executives address set forth on the signature page to this Agreement, or to the home address of the executive in the official records of the Company; or, in the case of the Company or Parent, to such other address as the Company or Parent may designate in a notice to the other. Each notice, demand, request or other communication that shall be given or made in the manner described above shall be deemed sufficiently given or made for all purposes three (3) days after it is deposited in the U.S. mail, postage prepaid, or at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, the answer back or the affidavit of messenger being deemed conclusive evidence of delivery) or at such time as delivery is refused by the addressee upon presentation ---|---|--- "
| a.| This Agreement is personal to the Executive and without the prior written consent of the Company and Parent shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executives legal representatives. ---|---|--- 
"15.Acknowledgment.With respect to the Release in paragraph 2 above, Executive agrees and understands that she is specifically releasing all claims under the Age Discrimination in Employment Act (29 U.S.C. 621etseq.), as amended. The Executive acknowledges that she has read and understands this Release and executes it voluntarily and without coercion. The Executive further acknowledges that she has had full opportunity to consult with an attorney prior to executing this Release, and that she has been advised in writing herein to do so. In addition, the Executive has been given twenty-one (21) days, to consider, execute, and deliver this Release to the Chairman of the Board of Directors of the Parent at the Parents principal business address, unless the Executive voluntarily chooses to execute this Release before the end of the twenty-one (21)-day period. The Executive understands that she has seven (7) days following her execution of this Release to revoke it in writing, and that this Release is not effective or enforceable until after this seven (7)-day period. For such revocation to be effective, notice must be delivered to the Parent at the Parents principal business address, addressed to the attention of the Chairman of the Board of Directors, no later than the end of the seventh calendar day after the date by which the Executive signed this Release. The Executive expressly agrees that, in the event she revokes this Release, this Release shall be null and void and have no legal or binding effect whatsoever, and she shall not be entitled to the payments described in paragraph 1 above, other than the Base Amounts, including pursuant to the Employment Agreement. The Parties recognize that she may elect to sign this Release prior to the expiration of the twenty-one (21)-day consideration period specified herein, and the Executive agrees that if she elects to do so such election is knowing and voluntary and comes after full opportunity to consult with an attorney."
"11.Injunctive Relief.Executive acknowledges that Executives breach of the covenants contained in Sections 9-10 (collectively Covenants) would cause irreparable injury to Company and agrees that, in the event of any such breach, Company shall be entitled to seek temporary, preliminary and permanent injunctive relief without the necessity of proving actual damages or posting any bond or other security."
"14.Entire Agreement.This Agreement, and the CNIAA constitute the entire among the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.This agreement may be amended or modified only with the written consent of Executive, the Company.No oral waiver, amendment or modification will be effective under any circumstances whatsoever and any such oral waiver, amendment or modification will be null and void."
"(a) Base Salary. The Company agrees to pay to Executive a base salary with respect to the 2016 calendar year at the annual rate of $787,856 or such greater amount as determined by the Compensation Committee of the Board of Directors of the Company (the Compensation Committee) from time to time (Base Salary). Effective as of January 1st of each subsequent calendar year, beginning with January 1, 2017 and ending on the third (3rd) anniversary of the occurrence of a Change of Control (as defined below), the Base Salary shall be automatically increased by three percent (3%) each calendar year, provided that the Compensation Committee may increase Executives Salary by additional discretionary amounts but any such additional discretionary amounts shall be disregarded when calculating the amount of any automatic increase in Executives Base Salary; provided further that, no such additional discretionary increase shall be implemented prior to the Plan Covenant Termination Date (as defined in the Plan) without the prior written consent of PharmAthene, Inc. Payments of the Base Salary shall be payable in equal installments in accordance with the Companys standard payroll practices."
"(f) Termination Upon a Change of Control. If (x) the Company terminates Executives employment hereunder without Cause, (y) Executive terminates Executives employment for Good Reason or (z) the Company delivers a notice of nonrenewal pursuant to Section 1, in each case during the period that begins ninety (90) days prior to the occurrence of the Change of Control and that ends on the second (2nd) anniversary of the occurrence of a Change of Control (the Change of Control Period), Executive shall be entitled to the payments provided for by Section 5(d). For purposes of this Agreement, a Change of Control shall be conclusively deemed to have occurred if any of the following shall have taken place:"
"(ii) stockholders of the Company approve a merger or consolidation of the Company with any other entity other than a Permitted Holder, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than eighty percent (80%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or"
"(b) Termination by Reason of Death or Executive Becoming Totally Disabled; Termination by the Company for Cause; Termination by Executive Without Good Reason. In the event that Executives employment is terminated prior to the expiration of the Term (i) by reason of Executives death pursuant to Section 4(a) or Executive becoming Totally Disabled pursuant to Section 4(b), (ii) by the Company for Cause pursuant to Section 4(c), or (iii) by Executive without Good Reason pursuant to Section 4(f), Executive (or Executives estate, as the case may be) shall be entitled to the Standard Termination Payments and the payment of any accrued but unpaid Annual Bonuses with respect to the prior full calendar year as determined by the Compensation Committee in good faith and payable in cash at the time described in Section 3(b)."
"(f) No Further Liability; Release. Payment made and performance by the Company in accordance with this Section 5 shall operate to fully discharge and release the Company and its directors, officers, employees, affiliates, stockholders, successors, assigns, agents and representatives from any further obligation or liability with respect to Executives employment and termination of employment. Other than providing the compensation and benefits provided for in accordance with this Section 5, the Company and its directors, officers, employees, affiliates, stockholders, successors, assigns, agents and representatives shall have no further obligation or liability to Executive or any other person under this Agreement or with respect to Executives employment or the termination thereof, with the exception of indemnification obligations under Section 3(e) hereof. The payment of any amounts pursuant to this Section 5 (other than payments required by law and the Standard Termination Payments) is expressly conditioned upon the timely delivery (and non-revocation) by Executive to the Company of a release, substantially in the form attached hereto as Exhibit A, of any and all claims Executive may have against the Company and its directors, officers, employees, affiliates, stockholders, successors, assigns, agents and representatives arising out of or related to Executives employment by the Company and the termination of such employment and Executives non-revocation of such release. Such release must be returned to the Company in accordance with the term set forth in such release agreement but no later than forty-five (45) days after Executives termination of employment and must become irrevocable at the expiration of any applicable revocation period. The payment of any amounts pursuant to this Section 5 (other than payments required by law and the Standard Termination Payments) will commence within thirty (30) days following the expiration of any applicable revocation period with respect to such release that has been timely executed by Executive and returned to the Company. However, if, pursuant to this Section 5(f), a payment may be made in one of two tax years, such payment will be made in the latter tax year."
"(a) No Conflict; No Other Employment. During the period of Executives employment with the Company, Executive shall not: (i) engage in any activity which conflicts or interferes with or derogates from the performance of Executives duties hereunder nor shall Executive engage in any other business activity, whether or not such business activity is pursued for gain or profit and including service as a director of any other company, except as approved in advance in writing by the Company; provided, however, that Executive shall be entitled to manage Executives personal investments and otherwise attend to personal affairs, including charitable, social and political activities, in a manner that does not unreasonably interfere with Executives responsibilities hereunder, or (ii) accept or engage in any other employment, whether as an employee or consultant or in any other capacity, and whether or not compensated therefor, except as approved in advance in writing by the Company and such approval will not be unreasonably withheld."
"(g) Code of Ethics. Nothing in this Section 6 is intended to limit, modify or reduce Executives obligations under the Companys Code of Ethics. Executives obligations under this Section 6 are in addition to, and not in lieu of, Executives obligations under the Code of Ethics. To the extent there is any inconsistency between this Section 6 and the Code of Ethics which would permit Executive to take any action or engage in any activity pursuant to this Section 6 which Executive would be barred from taking or engaging in under the Code of Ethics, the Code of Ethics shall control."
"(d) Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and construed (both as to validity and performance) and enforced in accordance with the internal laws of the State of New York applicable to agreements made and to be performed wholly within such jurisdiction, without regard to the principles of conflicts of law or where the parties are located at the time a dispute arises. In the event of any controversy or claim arising out of or relating to this Agreement or the breach or alleged breach hereof, each of the parties hereto irrevocably (a) consents to the jurisdiction of any state court sitting in the County of New York, State of New York, or federal court sitting in the County of New York, State of New York. (b) waives any objection which it may have at any time to the laying of venue of any action or proceeding brought in any such court and (c) waives any claim that such action or proceeding has been brought in an inconvenient forum."
"(d) Excepted from this General Release are: (i) retirement benefits accrued and vested prior to the effective date of your employment termination, (ii) all accrued and unpaid welfare benefit claims incurred prior to termination of your participation in such plans, (iii) the benefits specifically provided in Section 5.2 of the Employment Agreement, (iv) treatment of your equity awards as provided in the applicable equity plan and award agreements, (v) any right to indemnification under applicable corporate law, the Employment Agreement, the by-laws or certificate of incorporation of the Company or any Affiliate, or any agreement between you and the Company or any Affiliate and (vi) any rights as an insured under any directors and officers liability insurance policy."
"AGREEMENT, made as of this 18th day of April, 2016 (the Effective Date), by and between Genius Brands International, Inc., a company formed under the laws of the State of Nevada, with its principal place of business at 301 N. Canon Drive, Suite 305, Beverly Hills, CA 90210 (""Company""), and Rebecca Hershinger, residing at P.O. Box 681478, Park City, UT, 84068 (""Executive"")."
"7.2. Return of Documents. All documents, records, files, audio tapes, videotapes and any other media, however stored, of whatever kind and description relating to the business, present or otherwise, of the Company or its Affiliates and any copies, in whole or in part, thereof (the ""Documents""), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall not copy any Documents or remove any Documents from the premises of the Company or its Affiliates, except as required for the proper performance of regular duties for the Company or as expressly authorized in writing by the Board or its designee. The Executive agrees to return to the Company and its Affiliates at the time her employment terminates, and at such other times as may be specified by the Company or its Affiliates, all Documents and other property of the Company and its Affiliates then in her possession or control. The Executive agrees that, if a Document is on electronic media (e.g. a hard disk), upon the request of any duly authorized officer of the Company or its Affiliates, she will disclose all passwords necessary or desirable to enable the Company to obtain access to the Documents."
"9\. Enforcement of Covenants. The Executive acknowledges that she has carefully read and considered all the terms and conditions of this Agreement, including without limitation the restraints imposed upon her pursuant to Sections 7 and 8 hereof. The Executive agrees that said restraints are necessary for the reasonable and proper protection of the Company and its Affiliates and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. The Executive further acknowledges that, were she to breach any of the covenants or agreements contained in Sections 7 or 8 hereof, the damage to the Company and its Affiliates could be irreparable. The Executive therefore agrees that the Company shall be entitled to seek preliminary and permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants or agreements. The Companys Affiliates shall also have the right to enforce all of the Employees obligations to such Affiliates hereunder, including without limitation pursuant to Sections 7 and 8 hereof, and each of such Affiliates shall otherwise be a third party beneficiary of this Agreement. The parties further agree that in the event that any provision of Section 7 or 8 hereof shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law."
"The provisions of this Agreement are intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and any final regulations and guidance promulgated thereunder (Section 409A) and shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A."
"(iii) For the purposes of (i) and (ii) above, the Executive or Executives dependents shall pay the same percentage of the total cost of coverage under the applicable employee benefit plans as Executive was paying when Executives employment terminated. The total cost of the Executives continued coverage shall be determined using the same rates for health, life and/or disability coverage that apply from time to time to similarly situated active employees."
"(ii) The composition of the Board of Fulton shall have changed such that during any period of 12 consecutive months during the term of this Agreement, the majority of the Board is replaced by directors whose appointment or election is not endorsed by a majority of the members of Fultons board before the appointment or election; or"
"protection as nearly equivalent to that found to be invalid or unenforceable and if any such provision shall be so determined to be invalid or unenforceable by reason of the duration or geographical scope of the covenants contained therein, such duration or geographical scope, or both, shall be considered to be reduced to a duration or geographical scope to the extent necessary to cure such invalidity."
"7\. Termination. Upon the occurrence of an event of termination (as hereinafter defined) during the period of Place's employment under this Employment Agreement, the provisions of this paragraph 7 shall apply. As used in this Employment Agreement an ""event of termination"" shall mean and include any one or more of the following:"
"Upon the occurrence of an event of termination, the Company shall pay Place in one lump sum payment, or in the event of his subsequent death, his beneficiary (ies), or his estate, as the case may be, as severance pay or liquidated damages, or both, the remaining unpaid balance of his salary for the period shown in paragraph 2 of this Employment Agreement in the amount as shown in paragraph 4 under this Employment Agreement. Such payment shall be made on the last day of the month following the date of said occurrence."
10\. Waiver of Breach. All the rights and remedies of either party under this Employment Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of the Agreement shall operate as a waiver of any subsequent breach of this Employment Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence.
"(b) Position and Duties. During the Term, the Executive shall serve as the [] of the Company, and shall have supervision and control over and responsibility for the day-to-day business and affairs of the Company as may from time to time be prescribed by the [Board of Directors (the Board)/Chief Executive Officer] of the Company, provided that such duties are consistent with the Executives position or other positions that he or she may hold from time to time. The Executive shall devote substantially all of his or her full working time and efforts to the business and affairs of the Company. Notwithstanding the foregoing, the Executive may serve on other boards of directors, with the approval of the Board [of Directors of the Company (the Board)], or sit on the governing boards of, or hold leadership positions related to, religious, charitable or other community activities as long as such services and activities are disclosed to the Board and do not materially interfere with the Executives performance of his or her duties to the Company as provided in this Agreement."
"(b) Termination by the Company Without Cause or by the Executive with Good Reason. During the Term, if the Executives employment is terminated by the Company without Cause as provided in Section3(d), or the Executive terminates his or her employment for Good Reason as provided in Section3(e), then the Company shall pay the Executive his or her Accrued Benefit. In addition, subject to the Executive signing a separation agreement containing, among other provisions, a general release of claims in favor of the Company and related persons and entities, confidentiality, return of property, non- competition and non-disparagement, in a form and manner satisfactory to the Company (the Separation Agreement and Release) and the Separation Agreement and Release becoming fully effective, all within the time frame set forth in the Separation Agreement and Release:"
"(ii) if the Executive was participating in the Companys group health plan immediately prior to the Date of Termination and elects COBRA health continuation, then the Company shall pay to the Executive a monthly cash payment for [nine/12]2 months or the Executives COBRA health continuation period, whichever ends earlier, in an amount equal to the monthly employer contribution that the Company would have made to provide health insurance to the Executive if the Executive had remained employed by the Company;"
"5\. Change in Control Payment. The provisions of this Section5 set forth certain terms of an agreement reached between the Executive and the Company regarding the Executives rights and obligations upon the occurrence of a Change in Control of the Company. These provisions are intended to assure and encourage in advance the Executives continued attention and dedication to his or her assigned duties and his or her objectivity during the pendency and after the occurrence of any such event. These provisions shall apply in lieu of, and expressly supersede, the provisions of Section4(b) regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within 12 months after the occurrence of the first event constituting a Change in Control. These provisions shall terminate and be of no further force or effect beginning 12 months after the occurrence of a Change in Control."
"(i) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent"
"(i) any person, as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the Act) (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all affiliates and associates (as such terms are defined in Rule 12b-2"
"(b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit."
"(d) The parties intend that this Agreement will be administered in accordance with Section409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party."
"execution of this Agreement, the Executives employment with the Company and the performance of the Executives proposed duties for the Company will not violate any obligations the Executive may have to any such previous employer or other party. In the Executives work for the Company, the Executive will not disclose or make use of any information in violation of any agreements with or rights of any such previous employer or other party, and the Executive will not bring to the premises of the Company any copies or other tangible embodiments of non-public information belonging to or obtained from any such previous employment or other party."
"(f) Waiver and Release. Notwithstanding any other provisions of this Agreement to the contrary, unless expressly waived in writing by the Board in its sole discretion, the Executive shall not be entitled to any Severance Benefit, and the Company shall not pay such Severance Benefit (other than accrued Base Salary and unreimbursed business expenses as of the termination date), unless the Executive timely executes and delivers to the Company a general release (which shall be provided by the Company not later than five (5) days from the date on which the Executive's employment is terminated and be substantially in the form attached hereto as Exhibit B), whereby the Executive (or his estate or legally appointed personal representative) releases the Company (and affiliates of the Company and other designated persons) from all employment based or related claims of the Executive and all obligations of the Company to the Executive other than with respect to (x) the Company's obligations to make and provide the Severance Benefit and (y) any vested benefits to which the Executive is entitled under the terms of any Company benefit or equity plan, and the Executive does not revoke such release within any applicable revocation period following the Executive's delivery of the executed release to the Company. If the requirements of this Section 4(f) are not satisfied by the Executive (or his estate or legally appointed personal representative), then no Severance Benefit (other than accrued Base Salary and unreimbursed business expenses as of the termination date) shall be due to the Executive (or his estate) pursuant to this Agreement."
"(a) ""Affiliate"" shall mean, with respect to any Person, any Person that, directly or through one or more intermediaries, is controlled by, controls, or is under common control with, such Person within the meaning of Sections 414(b) or (c) of the Code; provided that, in applying such provisions, the phrase ""at least 50 percent"" shall be used in place of ""at least 80 percent"" each place it appears therein."
"(iv) a complete liquidation or dissolution of the Company is effected or there is a sale or disposition by the Company of all or substantially all of the Company's assets (in one transaction or a series of related transactions within any period of twenty-four (24) consecutive months), other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least seventy-five percent (75%) of the combined Voting Power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale."
"(d) Calculation of Relative Total Shareholder Return. The Company's ""Relative Total Shareholder Return"" means the Company's TSR relative to the TSR of the Peer Group Companies. Relative Total Shareholder Return will be determined by ranking the Company and the Peer Group Companies from highest to lowest according to their respective TSRs. After this ranking, the percentile performance of the Company relative to the companies in the Peer Group will be determined as follows:"
"5. Governing Law. The provisions of this Amendment will be construed and interpreted under the laws of the State of California without giving effect to the principles of conflict of laws thereof. To the extent not otherwise provided for by Section 21 of the Agreement, the Company and Executive consent to the exclusive jurisdiction of all state and federal courts located in Santa Clary County, California for the purpose of any suit, action or other proceeding arising out of, or in connection with this Amendment."
"2. RELEASE OF CLAIMS. In consideration of the terms set forth herein, you hereby fully release, acquit, and forever discharge Jaguar, and each of its predecessors, successors and assigns, subsidiary corporations, affiliated corporations, and the officers, directors, employees, attorneys and agents, past and present, of each of the aforesaid entities, of and from any and all claims, liabilities, causes of action, damages, costs, attorneys fees, expenses, and compensation whatsoever, of whatever kind or nature, in law, equity or otherwise, whether known or unknown, contingent, suspected or unsuspected, that you may now have, have ever had, or hereafter may have relating directly or indirectly to your employment with Jaguar. Specifically, you waive and release all claims, including, but not limited to, those arising under California Labor Code 1102.5, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991; the Equal Pay Act; the Americans With Disabilities Act of 1990; the Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment Act, as amended; Sections 1981 through 1988 of Title 42 of the United States Code, as amended; the Immigration Reform and Control Act, as amended; the Workers Adjustment and Retraining Notification Act, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act of 2002; the Employee Retirement Income Security Act of 1974, as amended; the National Labor Relations Act; the Uniformed Services Employment and Reemployment Rights Act; and any and all state or local statutes, ordinances, or regulations, as well as all claims arising under federal, state, or local law involving any tort, employment contract (express or implied), public policy, wrongful discharge, or any other claim. You also release any and all claims you may have that arose prior to the date of this Agreement under the Family and Medical Leave Act and the Fair Labor Standards Act."
"4. MUTUAL NON-DISPARAGEMENT. You and Jaguar agree that neither shall provide information, issue statements, or take any action, directly or indirectly, that would cause disparagement, embarrassment, humiliation or otherwise cause or contribute to you, Jaguar, Jaguars employees, directors, independent contractors, services, or products, being held in disrepute. Notwithstanding the foregoing, you may provide information that is required by a court, administrative agency or other governmental body with jurisdiction; provided that you use diligent efforts to: (i)promptly notify Jaguar of any such information demand prior to providing such information and cooperate in seeking any reasonable protective arrangements requested by Jaguar with respect to such information; (ii)limit any disclosure and obtain confidential treatment of such information if requested by Jaguar."
"(v) a lump sum payment in an amount equal to the estimated present value of the annual bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to the date of termination (the ""Bonus Severance Payment""). The Bonus Severance Payment shall be computed using the following formula:"
"The Company and the Executive hereby stipulate that the damages which may be incurred by the Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 9(b) constitute reasonable damages under the circumstances and shall be payable without any requirement of proof of actual damage and without regard to the Executive's efforts, if any, to mitigate damages. The Company and the Executive further agree that the Company may condition the payments and benefits (if any) due under sections 9(b)(iii), (iv), (v), (vi), (vii), (viii), (ix), and (x) on the receipt of the Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Company, the Bank or any subsidiary or affiliate of either of them; provided that such resignation is requested in writing not later than five (5) business days after termination of employment. The Executive agrees that the payments and benefits (if any) due under sections 9(b) (iii), (iv), (v), (vi), (vii) and (viii) shall be paid to Executive upon the sixtieth (60th) day following the Executives termination of employment, subject to the Executives execution, delivery, and non-revocation of a written release in substantially the form attached hereto as Appendix A (Release of Claims), within fifty-two (52) days of the Executives termination of employment and that no payment shall be made prior to the expiration of the revocation period."
"This Agreement will inure to the benefit of and be binding upon the Executive, his legal representatives and testate or intestate distributees, and the Company, and their respective successors and assigns, including any successor by merger or consolidation or a statutory receiver or any other person or firm or corporation to which all or substantially all of the assets and business of the Company may be sold or otherwise transferred. Failure of the Company to obtain from any successor its express written assumption of the Company's obligations hereunder at least sixty (60) days in advance of the scheduled effective date of any such succession shall be deemed a material breach of this Agreement."
"(a) The Company shall indemnify, hold harmless and defend the Executive against reasonable costs, including legal fees and expenses, incurred by him in connection with or arising out of any action, suit or proceeding in which he may be involved, as a result of his efforts, in good faith, to defend or enforce the terms of this Agreement. For purposes of this Agreement, any settlement agreement which provides for payment of any amounts in settlement of the Company's or the Bank's obligations hereunder shall be conclusive evidence of the Executive's entitlement to indemnification hereunder, and any such indemnification payments shall be in addition to amounts payable pursuant to such settlement agreement, unless such settlement agreement expressly provides otherwise. Any such indemnification payments will occur promptly following a request therefor, and in any event not later than the last day of the calendar year following the calendar year in which the indemnified expense is incurred or in which the Executive's legal right thereto is finally determined."
"(c) Notwithstanding anything herein contained to the contrary, if the Executive is suspended from office and/or temporarily prohibited from participating in the conduct of the affairs of the Company pursuant to a notice served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. 1818(e)(3) or 1818(g)(1), the Company's obligations under this Agreement shall be suspended as of the date of service of such notice, unless stayed by appropriate proceedings. If the charges in such notice are dismissed, the Company, in its discretion, may (i) pay to the Executive all or part of the compensation withheld while the Company's obligations hereunder were suspended and (ii) reinstate, in whole or in part, any of the obligations which were suspended."
"This waiver, release and discharge includes without limitation, claims related to any wrongful or unlawful discharge, discipline or retaliation, whether express or implied, any promotions or demotions, compensation, the Company's benefit plan(s) and the management thereof, defamation, slander, libel, invasion of privacy, misrepresentation, fraud, infliction of emotional distress, stress, breach of any covenant of good faith and fair dealing, and any other claims relating to the Employee's employment with the Company and the termination thereof. This waiver, release and discharge further applies but is not limited to any claims based on Title VII of the Civil Rights Act of 1964, the Post Civil War Civil Rights Act (41 U.S.C. ss. 1981 - 88), the Civil Rights Act of 1991, the Equal Pay Act, the Age Discrimination Employment Act, the Older Workers' Benefit Protection Act, the Rehabilitation Act of 1973,the Americans with Disabilities Act, the Vietnam Era Veterans' Readjustment Act, the Fair Labor Standards Act, the Workers Adjustment and Retraining Notification Act, Executive Order 11246, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act, Mass. Gen. Laws ch. 151B (all as they may be amended), and any other applicable federal, state or local laws, ordinances and regulations including those relating to discrimination to the extent permitted by law. Employee expressly waives all claims, including those which he does not know or suspect to exist in his favor as of the date of this Agreement against the Company. As used herein, the Employee understand the word ""claims"" to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively including all claims against the Company or otherwise arising from Employee's employment with the Company, the termination thereof or any other conduct occurring on or prior to the date the Employee signs this Release of Claims. All such claims are forever barred by this Release of Claims whether they arise in contract or tort or under a statute or any other law."
"(a) Tax Matters. All forms of compensation referred to in this letter agreement are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law. Executive is encouraged to obtain his own tax advice regarding his compensation from the Company. Executive agrees that the Company does not have a duty to design its compensation policies in a manner that minimizes Executives tax liabilities, and Executive shall not make any claim against the Company or the Board related to tax liabilities arising from his compensation hereunder."
"The following claims are not subject to arbitration under this Agreement: (1) claims for workers compensation benefits, state disability benefits, state unemployment benefits; (2) administrative charges filed with a federal, state or local government office or agency, such as the Equal Employment Opportunity Commission or any comparable state anti-discrimination agency, or the National Labor Relations Board; and (3) any claims that, as a matter of law, cannot legally be subject to arbitration. Nothing in these provisions shall preclude either Executive or the Company from seeking temporary or injunctive relief in a court prior to determining the claim in arbitration."
"(b) Confidentiality. Executive agrees that Executive will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any person or entity, other than in the course of Executives assigned duties hereunder and for the benefit of the Employer, either while Executive is employed by the Company hereunder or at any time thereafter, any business and technical information or trade secrets, nonpublic, proprietary or confidential information, knowledge or data relating to the Employer whether the foregoing will have been obtained by Executive during Executives employment hereunder or otherwise. The foregoing will not apply to information that (i)was known to the public prior to its disclosure to Executive; (ii)becomes generally known to the public or in the Employers industry subsequent to disclosure to Executive through no wrongful act by Executive or any of Executives representatives; or (iii)Executive is required to disclose by applicable law, regulation or legal process (provided that Executive provides the Company with prior notice of the contemplated disclosure and cooperates at the Companys cost with the Company in seeking a protective order or other appropriate protection of such information). The Company and Executive acknowledge that, notwithstanding anything to the contrary contained in this Agreement, pursuant to 18 USC  1833(b), an individual may not be held liable under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i)made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii)in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Company and Executive further acknowledge that an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order."
"The determination of the arbitrator will be final and binding on Executive and the Company. Judgment may be entered on the award of the arbitrator in any court having proper jurisdiction. Each party will bear their own expenses of such arbitration, except that the prevailing party shall be entitled to be indemnified for its reasonable attorneys fees and costs incurred in enforcing the terms of this Agreement should the other party violate any of its terms."
"16. Entire Agreement; Amendments. This Agreement and the agreements referenced herein contain the entire agreement of the parties relating to the subject matter hereof, and supersede in their entirety any and all prior and/or contemporaneous agreements, understandings or representations relating to the subject matter hereof, whether written or oral, including without limitation the Existing Agreement. No amendments, alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties hereto."
"(b) Each payment under this Agreement, including each installment payment, shall be considered a separate and distinct payment. For purposes of this Agreement, each payment is intended to be excepted from Section409A to the maximum extent provided as follows: (i)each payment made within the applicable 2 month period specified in Treas. Reg.  1.409A-1(b)(4)is intended to be excepted under the short-term deferral exception; (ii)post- termination medical benefits are intended to be excepted under the medical benefits exception as specified in Treas. Reg. 1.409A-1(b)(9)(v)(B); and (iii)to the extent payments are made as a result of an involuntary separation, each payment that is not otherwise excepted under the short-term deferral exception or medical benefits exception is intended to be excepted under the involuntary pay exception as specified in Treas. Reg.  1.409A-1(b)(9)(iii). With respect to payments subject to Section409A (and not excepted therefrom), if any, it is intended that each payment is paid on a permissible distribution event and at a specified time consistent with Section409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section409A. Executive shall have no right to designate the date or any payment under this Agreement."
"with respect to a calendar year unless Executive is employed with the Company on the last day of the calendar year to which such Annual Cash Incentive relates, except as otherwise set forth in Section6 hereof. The Board, in consultation with the Executive, will set annually the performance metrics for short-term business objectives and individual goals for the Annual Cash Incentive, as well as minimum payment thresholds and maximum payouts."
"5.2 Disability. At the option of the Company, by written notice to Executive or Executives personal representative in the event of the Disability of Executive. As used herein, the term Disability shall mean a physical or mental incapacity or disability which has rendered, or is likely to render, Executive unable to perform Executives material duties for a period of either (i)one hundred eighty (180)days in any twelve- (12-) month period or (ii)ninety (90)consecutive days, as determined by a medical physician selected by the Company;"
"5.6 By Executive Without Good Reason. At the option of Executive for any or no reason, on sixty (60)days prior written notice to the Company (which the Company may, in its sole discretion, make effective as a resignation earlier than the termination date provided in such notice), subject to Section6.5 to the extent applicable."
"6.1 Termination Without Cause, for Disability or Resignation for Good Reason. If Executives employment is terminated at any time during the Employment Period by the Company without Cause (and not for death) or pursuant to Section5.2 (Disability) or by Executive for Good Reason (as defined in Section6.4), subject to Section6.5 and Section12.7, where applicable, Executive shall be entitled to:"
"(f) if such termination is the result of a Termination Without Cause or Resignation for Good Reason then, subject to Executive executing a general release of all claims as set forth in Section6.5, Executive shall become fully vested in any equity awards made under the Companys Omnibus Incentive Plan (or any successor plan), whether such grants were made prior to or following the Effective Date, excluding the 2014 Performance Based Retention Grant, that are scheduled to vest within the eighteen- (18-) month period following Executives date of termination. Other than as set forth below in the context of options, Executive shall receive payments on the Payment Date as provided in the applicable award agreement as if the Executive were employed by the Company on the relevant Payment Date. All such equity awards shall be paid or vest pursuant to the terms of the original award agreements, but without regard to any continuing employment requirements or proration. Options that vest within the eighteen- (18-) month post termination period will terminate thirty (30)calendar days after the vesting date unless exercised by the Executive. Equity awards made under the Companys Omnibus Incentive Plan (or any successor plan), that are scheduled to vest (in whole or in part) after the eighteen month period following Executives date of termination as described above under this paragraph (f), shall vest and be paid only in accordance with the terms of the applicable award and the terms of the Omnibus Incentive Plan (or any successor plan)."
"6.3 Termination for Any Other Reason. Upon the termination of Executives employment for any reason other than by the Company without Cause, as a result of death or Disability or by Executive for Good Reason, including without limitation a termination by the Company For Cause or a Resignation by Executive Without Good Reason, Executive or Executives legal representatives shall be entitled to receive the payments and benefits described under Sections 6.1(a), (c), (g), and (h)hereof."
"6.5 Conditions to Payment. All payments and benefits due to Executive under this Section6 which are not otherwise required by law shall be payable only if Executive (or Executives beneficiary or estate) delivers to the Company and does not revoke (under the terms of applicable law) a general release of all claims in the form attached hereto as Exhibit A, provided that if necessary, such general release may be updated and revised to comply with applicable law to achieve its intent. Such general release shall be executed and delivered (and no longer subject to revocation) within sixty (60)days following termination and provided further that if the sixty- (60-) day period begins in one calendar year and ends in a second calendar year, payments shall always be made in the second calendar year. Failure to timely execute and return such release or revocation thereof shall be a waiver by Executive of Executives right to severance (which, for the avoidance of doubt, shall not include any amounts described in Sections 6.1(a), (c)and (h)hereof). In addition, severance shall be conditioned on Executives compliance with Section8 hereof as provided in Section9 below."
"8.4 Return of Company Property. Within ten (10)days following the date of any termination of Executives employment, Executive or Executives personal representative shall return all property of the Company in Executives possession, including but not limited to all Company-owned computer equipment (hardware and software), telephones, facsimile machines, smart phones, cell phones, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the Business, the Companys customers and clients or its prospective customers and clients. Anything to the contrary notwithstanding, Executive shall be entitled to retain (i)personal papers and other materials of a personal nature, provided that such papers or materials do not include Confidential Information, (ii)information showing Executives compensation or relating to reimbursement of expenses, and (iii)copies of plans, programs and agreements relating to Executives employment, or termination thereof, with the Company which he received in Executives capacity as a participant."
|  |  | 26 |  | | 16.0 |  | ABANDONED PROPERTY |  |  | 27 |  | | 17.0 |  | SUBORDINATION |  |  | 27 |  | | 18.0 |  | QUIET ENJOYMENT |  |  | 27 |  | | 19.0 |  | ENTIRE AGREEMENT - WAIVER - SURRENDER |  |  | 27 |  |  |
" | 5.3 | Licenses and Permits. If any governmental license or permit shall be required for the proper and lawful conduct of Tenants business, Tenant, at Tenants expense, shall duly procure and maintain such license or permit and submit the same to inspection by Landlord. Tenant, at Tenants expense, shall at all times comply with the terms and conditions of each such license or permit. ---|---|--- "
" | 7.7 | Repairs and Other Services. Except as otherwise provided in the Articles entitled CASUALTY and CONDEMNATION \- EMINENT DOMAIN, and subject to Tenants obligations in the Article contained herein entitled MAINTENANCE OF AND IMPROVEMENTS TO PREMISES and elsewhere in this Lease, Landlord shall (a)keep and maintain the roof, exterior walls and windows, structural floor slabs and columns of the Building in as good condition and repair as they are in on the Term Commencement Date, reasonable use and wear excepted, (b)keep and maintain in workable condition the Buildings sanitary, electrical, heating, air conditioning and other systems, (c)keep all walkways on the Property clean and remove all snow and ice therefrom and (d)provide grounds maintenance to all landscaped areas. ---|---|--- "
" | 9.2 | Additional Insureds. The Tenant shall add the Landlord and such other entities or individuals having an insurable interest in the Property as the Landlord may, from time to time, direct as Additional Insureds on a primary basis on Tenants Commercial General Liability, Umbrella Liability and Automobile Liability policies. ---|---|--- With respect to glass, contents and leasehold improvement and business interruption coverages, the Landlord shall be named as an Additional Insured and Loss Payee As Their Interest May Appear."
"and, in case any action or proceeding be brought against Landlord by reason of any of the foregoing, Tenant, upon notice from Landlord, shall, at Tenants expense, resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Landlord, it being agreed that such counsel as may act for insurance underwriters of Tenant engaged in such defense shall be deemed satisfactory."
"Except in the case of a Permitted Transfer, if the Assignment/Sublease Consideration exceeds the Lease rent plus Tenants Assignment/Sublease Costs, Tenant shall pay to Landlord 100% of such excess (the Assignment/Sublease Excess Rent). The Assignment/Sublease Excess Rent shall be paid to Landlord as Additional Rent in equal monthly installments during the balance of the Term with respect to an assignment and over the sublease term with respect to a sublease, and shall be payable on the first day of each month beginning with the first full month during which the assignment or sublease is effective."
" | 11.8 | Floor Loading. Tenant shall not place a load upon any floor of the Premises, the Building or other portion of the Property exceeding the floor load per square foot area which such floor was designed to carry and which is allowed by law. Landlord reserves the right to prescribe the weight and position of all equipment and fixtures, including computers and safes, which shall be placed so as to distribute weight and which shall be placed and maintained by Tenant at Tenants expense in settings sufficient in Landlords judgment to absorb and prevent vibration, noise and annoyance. ---|---|--- "
" | 15.3 | Fees and Expenses. If Tenant shall default in the performance of any covenant on Tenants part to be performed as in this Lease contained, Landlord may immediately, or at any time thereafter, without notice, perform the same for the account of Tenant. If Landlord at any time is compelled to pay or elects to pay any sum of money, or do any act which will require the payment of any sum of money, by reason of the failure of Tenant to comply with any provision hereof, or if Landlord is compelled to or does incur any expense, including without limitation reasonable attorneys fees, in instituting, prosecuting and/or defending any action or proceeding instituted by reason of any default of Tenant hereunder or any costs incurred in recovering possession of the Premises after the termination of the Lease, Tenant shall on demand pay to Landlord by way of reimbursement the sum or sums so paid by Landlord with all interest, costs and damages. ---|---|--- "
" | 15.5 | Grace Period. Notwithstanding anything to the contrary in this Article contained, Landlord agrees not to take any action to terminate this Lease (a)for default by Tenant in the payment when due of Rent, if Tenant shall cure such default within ten (10)days after written notice thereof given by Landlord to Tenant, or (b)for default by Tenant in the performance of any other covenant, if Tenant shall cure such default within a period of thirty (30)days after written notice thereof given by Landlord to Tenant (except where the nature of the default is such that remedial action should reasonably and appropriately take place sooner, as indicated in such written notice), or with respect to covenants other than to pay a sum of money within such additional period as may reasonably be required to cure such default if (because of governmental restrictions or any other cause beyond the reasonable control of Tenant) the default is of such a nature that it cannot be cured within such thirty (30)-day period, provided, however, (1)that there shall be no extension of time beyond such thirty (30)-day period for the curing of any such default unless, not more than ten (10)days after the receipt of the notice of default, Tenant in writing (i)shall specify the cause on account of which the default cannot be cured during such period and shall advise Landlord of its intention duly to institute all steps necessary to cure the default and (ii)shall as soon as may be reasonable duly institute and thereafter diligently prosecute to completion all steps necessary to cure such default and, (2)that no notice of the opportunity to cure a default need be given, and no grace period whatsoever shall be allowed to Tenant, if the default is incurable or if the covenant or condition the breach of which gave rise to the default had, by reason of a breach on a prior occasion, been the subject of a notice hereunder to cure such default. ---|---|--- "
"16.0 | ABANDONED PROPERTY ---|--- Any personal property in which Tenant has an interest which shall remain in the Premises, the Building or elsewhere on the Property after the expiration or termination of the Term of this Lease shall be conclusively deemed to have been abandoned, and may be disposed of in such manner as Landlord may see fit."
" | 27.4 | Landlord or Tenant. The words Landlord and Tenant as used in this Lease may extend to and be applied to several parties whether male or female and to corporations and partnerships, and words importing the singular may include the plural and all obligations of the Tenant as herein defined shall be joint and several. Each of the provisions of this Lease shall bind and inure to the benefit of the heirs, legal representatives, successors and assigns of the parties hereto and it is specifically understood that the Landlord has the right to assign all of its right, title and interest, or any portion thereof, in and to this Lease and any amendments thereto to any other party or entity during the Term of this Lease and any extension thereof and that the Tenant shall execute any and all instruments that may be necessary to acknowledge and assent to such assignment. ---|---|--- "
"22. | No tenant shall move, or permit to be moved, into or out of the Building or the premises demised to such tenant, any heavy or bulky matter, without the specific approval of Landlord. If any such matter requires special handling, only a person holding a Master Riggers license shall be employed to perform such special handling. No tenant shall place, or permit to be placed, on any part of the floor or floors of the premises demised to such tenant, a load exceeding the floor load per square foot which such floor was designed to carry and which is allowed by law. Landlord reserves the right to prescribe the weight and position of safes and other heavy matter, which must be placed so as to distribute the weight. ---|--- "
"23. | The requirements of tenants will be attended to only upon application at the office of the Building. Building employees shall not be required to perform, and shall not be requested by any tenant or occupant to perform, any work outside of their regular duties, unless under specific instructions from the office of the managing agent of the Building. ---|--- "
"THIS AMENDMENT made this October11, 2016, between Newton Executive Park Limited Partnership, a Massachusetts Limited Partnership having offices at One Gateway Center, Newton, Massachusetts (Landlord) and Allena Pharmaceuticals, Inc., a Delaware corporation, with offices located in Newton, Massachusetts and Alcresta, Inc., a Delaware corporation, with offices located Newton, Massachusetts (jointly and severally the Tenant)."
"impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) Executive is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident or health plan covering employees of the Company. Whether Executive has incurred a Disability shall be determined by a physician selected by the Company or its insurers. Executive shall be entitled to the compensation and benefits provided for under this Agreement for any period prior to Executives termination by reason of Disability during which Executive is unable to work due to a physical or mental infirmity in accordance with the Companys policies for similarly- situated executives (without duplication of compensation and benefits payable under any applicable disability policies)."
"(ii) an amount equal to the Incentive Compensation that Executive would have been entitled to receive in respect of the fiscal year in which Executives termination date occurs, had Executive continued in employment through the date the payment is made, which amount, determined based on the Companys actual performance for such year relative to the performance goals applicable to Executive shall be multiplied by a fraction (A) the numerator of which is the number of days in such fiscal year through termination date and (B) the denominator of which is 365 (the Pro-Rata Bonus) and shall be payable in a lump sum payment at the time such bonus or incentive awards are payable to other participants."
"(b) Section 409A. The Parties intend for the payments and benefits under this Agreement to be exempt from Section 409A of the Code or, if not so exempt, to be paid or provided in a manner which complies with the requirements of such section, and intend that this Agreement shall be construed and administered in accordance with such intention. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, (i) no amounts"
"(e) Proprietary Rights. Executive recognizes that the Company and its Affiliates possess a proprietary interest in all Confidential Information and Work Product and have the exclusive right and privilege to use, protect by copyright, patent or trademark, or otherwise exploit the processes, ideas and concepts described therein to the exclusion of Executive, except as otherwise agreed between the Company and Executive in writing. Executive expressly agrees that any Work Product made or developed by Executive or Executives agents or Affiliates during the course of Executives employment, including any Work Product which is based on or arises out of Work Product, shall be the property of and inure to the exclusive benefit of the Company and its Affiliates. Executive further agrees that all Work Product developed by Executive (whether or not able to be protected by copyright, patent or trademark) during the course of Executives employment, or involving the use of the time, materials or other resources of the Company or any of its Affiliates, shall be promptly disclosed to the Company and shall become the exclusive property of the Company, and Executive shall execute and deliver any and all documents necessary or appropriate to implement the foregoing."
"(g) Cooperation in Any Investigations and Litigation. Executive agrees that Executive will reasonably cooperate at reasonable times and places with the Company and its Affiliates, and its counsel, in connection with any investigation, inquiry, administrative proceeding or litigation relating to any matter in which Executive becomes involved or of which Executive has knowledge as a result of Executives service with the Company by providing truthful information. The Company agrees to promptly reimburse Executive for reasonable expenses approved in writing in advance of being incurred (including travel expenses, attorneys fees and other expenses of counsel) by Executive, in connection with Executives cooperation pursuant to this Section 9(g). Such reimbursements shall be made within sixty (60) days following Executives submission of a written invoice to the Company describing such expenses"
"(c) Indemnification. Executive shall be indemnified by the Company as, and to the extent, provided in the certificate of incorporation and bylaws of the Company and as provided in Executives Director and Officer Indemnification Agreement dated October 17, 2017 and shall be provided with director and officer liability insurance on a basis no less favorable than provided to any other officer or director of the Company. The obligations under this paragraph shall survive termination of the Term."
"writing and shall be deemed to have been duly given when personally delivered or sent by Certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by each Party to the other, provided that all notices to the Company shall be directed to the attention of the Companys Chief Executive Officer with a copy to the Companys General Counsel. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt."
"(j) Modification. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by Executive and the Company. No waiver by either Party hereto at any time of any breach by the other Party hereto of, or noncompliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either Party which are not expressly set forth in this Agreement."
"9.02Landlord shall keep and maintain in good repair and working order and perform maintenance upon the: (a)structural elements of the Building; (b)mechanical (including HVAC), electrical, plumbing and fire/life safety systems serving the Building in general; (c)Common Areas; (d)roof of the Building; (e)exterior windows of the Building; and (f)elevators serving the Building. Landlord shall promptly make repairs for which Landlord is responsible."
"Subject to the foregoing provisions of this Section9, including, without limitation, Landlords prior written approval of all plans and specifications and Tenants contractor, Tenant may, at Tenants sole cost and expense, install in the Premises a security card access system compatible with the Buildings security card access system. Tenant shall provide Landlord with access cards or codes necessary for access to the Premises by Landlord in connection with the performance of its obligations and/or the exercise of its rights under this Lease."
"11.02Tenant shall provide Landlord with financial statements for the proposed transferee (or, in the case of a change of ownership or control, for the proposed new controlling entity(ies)), a fully executed copy of the proposed assignment or sublease (or, where applicable, other Transfer) documentation and such other information as Landlord may reasonably request. Within fifteen (15)days after receipt of the required information and documentation, Landlord shall either: (a)consent to any assignment or sublet by execution of a consent agreement in a form reasonably designated by Landlord; (b)reasonably refuse to consent to any assignment or sublet in writing; or (c)in the event of an assignment of this Lease or subletting of more than fifty percent (50%) of the Rentable Square Footage of the Premises for the then remaining Term (excluding unexercised options), recapture the portion of the Premises that Tenant is proposing to assign or sublet. If Landlord exercises its right to recapture, this Lease shall automatically be amended (or terminated if the entire Premises is being assigned or sublet) to delete the applicable portion of the Premises effective on the proposed effective date of the Transfer, although Landlord may require Tenant to execute a reasonable amendment or other document reflecting such reduction or termination. Tenant shall pay Landlord a review fee of up to $1,500.00 for Landlords out of pocket costs in connection with Landlords review of any requested Transfer, whether or not Landlord approves same."
"HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY UNDER THIS LEASE, NOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN WITH RESPECT TO TENANT ONLY, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR LANDLORD RELATED PARTIES EVER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY LOST PROFITS OF TENANT."
"26. | Miscellaneous. ---|--- 26.01This Lease shall be interpreted and enforced in accordance with the Laws of the state or commonwealth in which the Building is located and Landlord and Tenant hereby irrevocably consent to the jurisdiction and proper venue of such state or commonwealth. If any term or provision of this Lease shall to any extent be void or unenforceable, the remainder of this Lease shall not be affected. If there is more than one Tenant or if Tenant is comprised of more than one party or entity, the obligations imposed upon Tenant shall be joint and several obligations of all the parties and entities, and requests or demands from any one person or entity comprising Tenant shall be deemed to have been made by all such persons or entities. Notices to any one person or entity shall be deemed to have been given to all persons and entities."
"26.06Tenant, within fifteen (15) days after written request, shall provide Landlord with a current financial statement for Tenant. Landlord, however, shall not require Tenant to provide such information more than once per Fiscal Year, unless Landlord is requested to produce the information in connection with a proposed financing or sale of the Building. Upon written request by Tenant, Landlord shall enter into a commercially reasonable confidentiality agreement covering any confidential information that is disclosed by Tenant."
"26.14If Landlord is advised by its counsel at any time that any part of the payments by Tenant to Landlord under this Lease may be characterized as unrelated business income under the United States Internal Revenue Code and its regulations, then Tenant shall enter into any amendment proposed by Landlord to avoid such income, so long as the amendment does not create adverse consequences for Tenant or otherwise require Tenant to make more payments or accept fewer services from Landlord, than this Lease provides."
"2. | Expenses. ---|--- 2.01Expenses means all costs and expenses incurred in each calendar year in connection with operating, maintaining, repairing, and managing the Building, the Property, and the Park (as hereinafter provided for). Expenses include, without limitation: (a)all labor and labor related costs, including wages, salaries, bonuses, taxes, insurance, uniforms, training, retirement plans, pension plans and other employee benefits; (b)management fees in an"
"4. | Audit Rights. ---|--- Within ninety (90)days after receiving Landlords statement of Expenses (or, with respect to the Base Year Expenses, within ninety (90)days after receiving Landlords initial statement of Expenses for the Base Year) (each such period is referred to as the Review Notice Period), Tenant may give Landlord written notice (Review Notice) that Tenant intends to review Landlords records of the Expenses, Taxes and electricity to which the statement applies, and within thirty (30)days after delivering the Review Notice to Landlord (such period is referred to as the Request for Information Period), Tenant shall send Landlord a written request identifying, with a reasonable degree of specificity, the particular information Tenant desires to review (the Request for Information). Within a reasonable time (not to exceed fifteen (15)Business Days) after Landlords receipt of a timely Request for Information, Landlord shall forward to Tenant, or make available for inspection on site at either the Building or at Landlords principal place of business, such records (or copies thereof) for the applicable calendar year, Fiscal Year (or Base Year, as applicable) that are reasonably necessary for Tenant to conduct its review of the information identified in the Request for Information. Within sixty (60)days after any particular records are made available to Tenant (such period is referred to as the Objection Period), Tenant shall have the right to give Landlord written notice (an Objection Notice) stating in reasonable detail any objection to (i)Landlords statement of Expenses for that year which relates to the records that have been made available to Tenant and/or (ii)such records made available to Tenant, or the lack thereof. If Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall work together in good faith to resolve any issues raised in Tenants Objection Notice. If Landlord and Tenant determine that Expenses for the calendar year, Fiscal Year, and/or applicable billing period, are less than reported, Landlord shall promptly provide Tenant with a credit against the next installment of Rent in the amount of the overpayment by Tenant, so that Tenant is reimbursed as quickly as possible. Likewise, if Landlord and Tenant determine that Expenses for the calendar year, Fiscal Year, and/or applicable billing period, are greater than reported, Tenant shall pay Landlord the amount of any underpayment within thirty (30)days. If Tenant fails to give Landlord an Objection Notice with respect to any records that have been made available to Tenant prior to expiration of the Objection Period applicable to the records which have been provided to Tenant, Tenant shall be deemed to have approved Landlords statement with respect to the matters reflected in such records and shall be barred from raising any claims regarding the Expenses, Taxes, electricity or the Additional Rent payable during such periods. If Tenant fails to provide Landlord with a Review Notice prior to expiration of the Review Notice Period or fails to provide Landlord with a Request for Information prior to expiration of the Request for Information Period described above, Tenant shall be deemed to have approved Landlords statement of applicable Expenses, applicable Taxes, applicable electricity or applicable Additional Rent and shall be barred from raising any claims regarding the applicable Expenses, applicable Taxes, applicable electricity or applicable Additional Rent for that year, Fiscal Year and/or applicable billing period."
"5. | This Work Letter shall not be deemed applicable to any additional space added to the original Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Lease Term, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease. All capitalized terms used in this Work Letter but not defined herein shall have the same meanings ascribed to such terms in the Lease. ---|--- [END OF EXHIBIT C]"
"13.Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the Premises or the Building. Tenant shall not use, or permit any part of the Premises to be used for lodging, sleeping or for any illegal purpose. "
"19.Landlord shall have the right to prohibit the use of the name of the Building or any other publicity by Tenant that in Landlords sole opinion may impair the reputation of the Building or its desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately. "
"21.Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window coverings are closed on windows in the Premises while they are exposed to the direct rays of the sun. "
"(a) In consideration of all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary (the Base Salary) at an annual rate of $750,000 during the Employment Period. Executives Base Salary will be reviewed from time to time (but will not decrease, except in the event of an across-the-board reduction applicable to substantially all senior executives of the Company)."
"Options that vest within the eighteen- (18-) month post termination period will terminate thirty (30)calendar days after the vesting date unless exercised by the Executive. Equity awards made under the Companys Omnibus Incentive Plan (or any successor plan), that are scheduled to vest (in whole or in part) after the eighteen- (18-) month period following Executives date of termination as described above under this paragraph (f), shall vest and be paid only in accordance with the terms of the applicable award and the terms of the Omnibus Incentive Plan (or any successor plan)."
"12.3 Entire Agreement; Amendment. Except as otherwise expressly provided herein and as further set forth in the grant agreement of any equity awards, this Agreement constitutes the entire Agreement between the parties hereto with regard to the subject matter hereof, superseding all prior understandings, term sheets and agreements, whether written or oral. This Agreement may not be amended or revised except by a writing signed by the parties."
"12.4 Assignment and Transfer. The provisions of this Agreement shall be binding on and shall inure to the benefit of the Company and any successor in interest to the Company who acquires all or substantially all of the Companys assets. Neither this Agreement nor any of the rights, duties or obligations of Executive shall be assignable by Executive, nor shall any of the payments required or permitted to be made to Executive by this Agreement be encumbered, transferred or in any way anticipated, except as required by applicable laws. All rights of Executive under this Agreement shall inure to the benefit of and be enforceable by Executives personal or legal representatives, estates, executors, administrators, heirs and beneficiaries."
"(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered nonqualified deferred compensation under Code Section409A upon or following a termination of employment unless such termination is also a separation from service within the meaning of Code Section409A and, for purposes of any such provision of this Agreement, references to a termination, termination of employment or like terms shall mean separation from service. If Executive is deemed on the date of termination to be a specified employee within the meaning of that term under Code Section409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section409A payable on account of a separation from service, if no exemption or exclusion from Section409 (A)is determined to apply, such payment or benefit shall not be made or provided until the date which is the earlier of (i)the expiration of the six (6)-month period measured from the date of such separation from service of Executive, and (ii)the date of Executives death (the Delay Period). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section12.7(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Executive in a lump sum with interest at the prime rate during the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates and in the normal payment forms specified for them herein."
"unconscionable or otherwise unenforceable; provided however, that it is agreed that the arbitrators shall have no authority to decide any questions as to whether the waiver of class and collective actions is valid or enforceable and all questions of the validity or enforceability of the waiver shall be decided by a court, not the arbitrators, and the court shall stay any arbitration that purports to proceed as a class or collective action or where the claimant in the arbitration seeks to otherwise act in a representative capacity."
"| | ---|---|--- Cedar Fair, L.P. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Cedar Fair Management, Inc. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Magnum Management Corp. | | ---|---|--- | By: |  |  Name: |  | Title: |  |  --- EMPLOYEE "
"WHEREAS, on January15, 2015, Caesars Entertainment Operating Company, Inc. and each other Debtor (as defined in the Plan of Reorganization) filed a voluntary petition for relief under the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Illinois (the Bankruptcy Court) and each continued in the possession of its property and in the management of its business pursuant to Sections 1107 and 1108 of the Bankruptcy Code."
"(ii) at any time upon or after a Qualified IPO, no person or group (within the meaning of Section13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group and its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than any combination of the Permitted Holders, shall have acquired beneficial ownership (as defined in Rules13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) of more than the greater of (x) 35% on a fully diluted basis of the ordinary voting Equity Interests in the Borrower and (y)the percentage of the ordinary voting Equity Interests in the Borrower owned, directly or indirectly, in the aggregate by the Permitted Holders on a fully diluted basis."
"(c) (i) on the Closing Date and at all times thereafter, all Indebtedness of the Borrower and each Subsidiary having, in the case of each instance of Indebtedness, an aggregate principal amount in excess of $25.0million (other than (A)intercompany current liabilities in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries or (B)to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to a Loan Party, other than Excluded Securities, shall be evidenced by a promissory note or an instrument and shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document as reasonably required by the Collateral Agent), and (ii)the Collateral Agent shall have received all such promissory notes or instruments required to be delivered pursuant to the applicable Security Documents, together with note powers or other instruments of transfer with respect thereto endorsed in blank;"
"(e) after the Closing Date, (i)all the outstanding Equity Interests in (A)any person that becomes a Subsidiary Loan Party after the Closing Date and (B)subject to Section5.10(g), all the Equity Interests that are directly acquired by a Loan Party after the Closing Date, other than Excluded Securities, shall have been pledged pursuant to the Collateral Agreement, and (ii)the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;"
"Confirmation Order shall mean that certain order of the Bankruptcy Court dated January17, 2017, Docket No.6334, (x)confirming the Plan of Reorganization pursuant to Section1129 of the Bankruptcy Code, (y)authorizing the Debtors to enter into and perform all documents to effectuate the Plan of Reorganization (including an agreement releasing the Arrangers and the Lenders effective as of the effective date of the Plan of Reorganization in a manner similar to the release of the Released Parties under the Plan of Reorganization) and (z)authorizing the Debtors to pay any fees in connection with the syndication of the Facilities, as the same may amended, modified, supplemented or waived."
(m) any amounts thereof used to make payments or distributions in respect of Junior Financings pursuant to Section6.09(b)(i)(E) after the Closing Date prior to such time (other than payments made with proceeds from the issuance of Equity Interests that were excluded from the calculation of the Cumulative Credit pursuant to clause (c)above).
"specifically identified in such writing or public statement) cannot be satisfied), (c)has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d)has, or has a direct or indirect parent company that has, (i)become the subject of a proceeding under any Debtor Relief Law, (ii)had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii)become the subject of a Bail-in Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses(a) through (d)above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section2.22) upon delivery of written notice of such determination to the Borrower, each L/C Issuer and each Lender."
"minus (b)the sum of (without duplication and to the extent the amounts described in this clause(b) increased such Consolidated Net Income for the respective period for which EBITDA is being determined) non-cash items increasing Consolidated Net Income of the Borrower and the Subsidiaries for such period (but excluding any such items (A)in respect of which cash was received in a prior period or will be received in a future period or (B)which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period)."
"Environmental Laws shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to human health and safety matters (to the extent relating to the environment or Hazardous Materials)."
"(e) Taxes (and, without duplication, Tax Distributions) paid in cash by the Borrower and its Subsidiaries on a consolidated basis during such Applicable Period or that will be paid within six months after the close of such Applicable Period; provided, that with respect to any such amounts to be paid after the close of such Applicable Period, (i)any amount so deducted shall not be deducted again in a subsequent Applicable Period, and (ii)appropriate reserves shall have been established in accordance with GAAP,"
"(h) any other Domestic Subsidiary with respect to which, (x)the Administrative Agent and the Borrower reasonably agree that the cost or other consequences of providing a Guarantee of or granting Liens to secure the Obligations are likely to be excessive in relation to the value to be afforded thereby or (y)providing such a Guarantee or granting such Liens could reasonably be expected to result in an adverse tax consequence to the Borrower or one of its Subsidiaries that is not de minimis as determined in good faith by the Borrower,"
"Incremental Term Loans shall mean Term Loans made by one or more Lenders to the Borrower pursuant to Section2.01(c). Incremental Term Loans may be made in the form of additional Term B Loans or, to the extent permitted by Section2.21 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans (including in the form of Extended Term Loans or Refinancing Term Loans, as applicable)."
"L/C Issuer shall mean each of Credit Suisse, Deutsche Bank AG New York Branch, Barclays Bank PLC, Citibank, N.A., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., UBS AG, Stamford Branch and each other L/C Issuer designated pursuant to Section2.05(k), in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Sections 2.05(l) or 8.09; provided that, in the case of any Existing Letter of Credit, the L/C Issuer with respect thereto shall be as is indicated on Schedule 1.01(A). An L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the term L/C Issuer shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires."
"Management Group shall mean the group consisting of the directors, executive officers and other management personnel of CEC, the Borrower and the Subsidiaries, as the case may be, on the Closing Date together with (x)any new directors whose election by such boards of directors or whose nomination for election by the shareholders of the Borrower, was approved by a vote of a majority of the directors of the Borrower, then still in office who were either directors on the Closing Date or whose election or nomination was previously so approved and (y)executive officers and other management personnel of CEC, the Borrower and the Subsidiaries, as the case may be, hired at a time when the directors on the Closing Date together with the directors so approved constituted a majority of the directors of the Borrower."
"New Project shall mean each capital project which is either a new project or a new feature at an existing project owned by the Borrower or its Subsidiaries (including, without limitation, each Development Project and each Expansion Capital Expenditure) which receives a certificate of completion or occupancy and all relevant licenses, and in fact commences operations."
"Qualified Non-Recourse Debt shall mean Indebtedness that (i)is (x) incurred by a Qualified Non-Recourse Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of any new property (real or personal, whether through the direct purchase of property or the Equity Interests in any person owning such property and whether in a single acquisition or a series of related acquisitions) or any Undeveloped Land or, to the extent owned by the Borrower or a Subsidiary on the Closing Date, any Real Property located outside the United States or (y)assumed by a Qualified Non-Recourse Subsidiary, (ii)is non-recourse to the Borrower and any Subsidiary (other than a Qualified Non- Recourse Subsidiary or its Subsidiaries) and (iii)is non-recourse to any Subsidiary that is not a Qualified Non-Recourse Subsidiary."
"Replacement L/C Obligations means, as at any date of determination with respect to any Replacement Revolving Facility, the aggregate amount available to be drawn under all outstanding Replacement Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings, under such Replacement Revolving Facility. For all purposes of this Agreement, if on any date of determination a Replacement Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Replacement Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn."
"Required Revolving Facility Lenders shall mean, at any time, Revolving Facility Lenders having (a)Revolving Facility Loans outstanding, (b)L/C Obligations and (c)Available Unused Commitments that, taken together, represent more than 50% of the sum of (x)all Revolving Facility Loans outstanding, (y)all L/C Obligations and (z)the total Available Unused Commitments at such time; provided, that the Revolving Facility Loans, L/C Obligations and Available Unused Commitment of any Defaulting Lender shall be disregarded in determining Required Revolving Facility Lenders at any time."
"Requirement of Law shall mean, as to any person, any law, treaty, rule, regulation, statute, order, ordinance, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding upon such person or any of its property or assets or to which such person or any of its property or assets is subject (including any Gaming Laws)."
"Secured Parties shall mean, collectively, the Administrative Agent, the Collateral Agent, each Lender, each L/C Issuer, each Hedge Bank that is party to any Secured Swap Agreement, each Cash Management Bank that is party to any Secured Cash Management Agreement and each sub-agent appointed pursuant to Section8.02 by the Administrative Agent with respect to matters relating to the Loan Documents or by the Collateral Agent with respect to matters relating to any Security Document."
"Senior Secured Leverage Ratio means, on any date, the ratio of (a)Total First Lien Senior Secured Net Debt as of the last day of the Test Period most recently ended as of such date to (b)EBITDA for the Test Period most recently ended as of such date, all determined on a consolidated basis in accordance with GAAP; provided, that the Senior Secured Leverage Ratio shall be determined for the relevant Test Period on a Pro Forma Basis; provided, further, however, that for purposes of calculating the Senior Secured Leverage Ratio from and after any Covenant Resumption Date, (i)EBITDA for the fiscal quarter in which the relevant Qualifying Act of Terrorism shall have occurred, (ii)EBITDA for any fiscal quarter following such quarter referred to in clause (i)in which a Material Disruption existed and (iii)EBITDA for the next succeeding fiscal quarter after the latest quarter to occur of any quarter referred to in clause (i)or (ii) shall, in each case, be the greater of (1)Substituted EBITDA and (2)actual EBITDA for such quarter. For the purposes of the foregoing, Substituted EBITDA shall mean the EBITDA for the fiscal quarter immediately preceding the fiscal quarter referred to in clause (i)of the previous sentence, in each case subject to customary seasonal adjustments (as determined in good faith by the Borrower and set forth in a certificate of a Responsible Officer of the Borrower delivered to the"
"Transactions shall mean, collectively, (a)the consummation of the Plan of Reorganization and the Restructuring Transactions described therein (including the transactions contemplated by the RSAs and the entry into the Master Leases and the MLSAs); (b) the execution, delivery and performance of this Agreement and the other Loan Documents, the creation of the Liens pursuant to the Security Documents, and the borrowings and other extensions of credit hereunder; (c)the execution, delivery and performance of each Master Lease and MLSA, (d)the Emergence Restructuring Transactions; and (e)the payment of all fees and expenses in connection therewith to be paid on, prior or subsequent to the Closing Date."
"Unrestricted Subsidiary shall mean (1)any Subsidiary of the Borrower identified on Schedule 1.01(D), (2) any other Subsidiary (other than a Wholly Owned Subsidiary that is a Master Lease Tenant) of the Borrower, whether now owned or acquired or created after the Closing Date, that is designated by the Borrower as an Unrestricted Subsidiary hereunder after the Closing Date by written notice to the Administrative Agent; provided, that the Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date and so long as (a)no Event of Default has occurred and is continuing or would result therefrom, (b)immediately after giving effect to such designation, the Borrower shall be in Pro Forma Compliance, (c)such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any of its Subsidiaries) through Investments as permitted by, and in compliance with, Section6.04 and (d)without duplication of clause (c), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section6.04, and (3)any subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a Subsidiary Redesignation); provided, that (i)no Event of Default has occurred and is continuing or would result therefrom and (ii)the Borrower shall have delivered to the Administrative Agent an officers certificate executed by a Responsible Officer of the Borrower, certifying to the best of such officers knowledge, compliance with the requirements of preceding clause(i).1"
"Working Capital shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided, that, for purposes of calculating Excess Cash Flow, increases or decreases in Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a)any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b)the effects of purchase accounting."
"SECTION 1.07. Limited Condition Transactions. For purposes of (i)determining compliance with any provision of this Agreement that requires the calculation of the Senior Secured Leverage Ratio, the Total Secured Leverage Ratio, the Total Leverage Ratio or the Fixed Charge Coverage Ratio, (ii)determining compliance with representations, warranties, Defaults or Events of Default or (iii)testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of EBITDA or total assets), in each case, in connection with a Permitted Business Acquisition or other Investment permitted hereunder (including Permitted Business Acquisitions and other Investments subject to a letter of intent or purchase agreement) by one or more of the Borrower and its Subsidiaries of any assets, business or person (any such transaction, a Limited Condition Transaction), at the option of the Borrower (the Borrowers election to exercise such option in connection with any Limited Condition Transaction, an LCT Election), the date of determination of whether any such action is permitted under this Agreement shall be deemed to be the date the definitive agreements for such Limited Condition Transaction (or commitments with respect to Indebtedness to be incurred in connection therewith) are entered into (the LCT Test Date), and if, after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i)the date on which such Limited Condition Transaction is consummated or (ii)the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) had been consummated."
"(d) Any failure by a Revolving Facility Lender of the applicable Classto respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Facility Lender to permit Eurocurrency Revolving Facility Loans of the applicable Classto be made in such requested currency. If the Administrative Agent and all Revolving Facility Lenders of the applicable Classconsent to making Eurocurrency Revolving Facility Loans in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternate Currency hereunder for purposes of any Borrowings of Eurocurrency Revolving Facility Loans of the applicable Class. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section1.08, the Administrative Agent shall promptly so notify the Borrower."
"(f) Any failure by an L/C Issuer to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such L/C Issuer to issue Letters of Credit in such requested currency. If the Administrative Agent and the applicable L/C Issuer consent to making Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternate Currency hereunder for purposes of any Letters of Credit issued by such L/C Issuer. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section1.08, the Administrative Agent shall promptly so notify the Borrower."
"(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;"
"(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B)the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit."
"(vi) If any Revolving Facility Lender under the applicable Revolving Facility fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section2.05(c) by the time specified in Section2.05(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lenders ABR Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Facility Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi)shall be conclusive absent manifest error."
"(i) all Net Proceeds pursuant to Section2.11(b) and Excess Cash Flow pursuant to Section2.11(c) shall be applied to the Term Loans pro rata among each Term Facility, with the application thereof being applied to the remaining installments thereof in direct order of maturity; provided that, subject to the pro rata application to Loans outstanding within any Classof Term Loans, the Borrower may allocate such prepayment in its sole discretion among the Classor Classes of Term Loans as the Borrower may specify (so long as such mandatory prepayments are not directed to any Classof Term Loans with a later Term Facility Maturity Date without at least a pro rata repayment of each Classof Term Loans with an earlier Term Facility Maturity Date);"
"(vi) To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section2.11(g)(iii) above) established by the Administrative Agent in consultation with the Borrower."
"(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without withholding or deduction for any Taxes except as required by law; provided, that if any applicable withholding agent shall be required to"
"(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section2.05(c), Section2.05(d), Section2.06(b) or Section2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenders obligations under such Sections until all such unsatisfied obligations are fully paid."
"(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i)all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Classof Term Loans on a pro rata basis, and (ii)all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Classof outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing."
"final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii)and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section2.21(b)(viii)), the Extended Term Loans shall have (x)terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Classof Term Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such Extended Term Loan), or (y)such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii)the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii)the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Classof Term Loans to which such offer relates (without giving effect to any amortization or prepayments on such Classof Term Loans), (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x)terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Classof Revolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Extended Revolving Facility Commitments) or (y)have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v)any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each L/C Issuer, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Classof Revolving Facility Commitments."
"(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii)no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii)any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment),"
"SECTION 3.02. Authorization. The execution, delivery and performance by the Borrower and each of the Subsidiary Loan Parties of each of the Loan Documents to which it is a party, and the borrowings hereunder and the Transactions (a)have been duly authorized by all corporate, stockholder, partnership or limited liability company action required to be obtained by the Borrower and such Subsidiary Loan Parties and (b)will not (i)violate (A) any provision of law (including Gaming Laws), statute, rule or regulation applicable to the Borrower or any such Subsidiary Loan Party, (B)any provision of the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or operating agreements or by-laws) of the Borrower or any such Subsidiary Loan Party, (C)any applicable order of any court or any rule, regulation or order of any Governmental Authority applicable to the Borrower or any such Subsidiary Loan Party or (D)any"
"SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required for the execution, delivery of performance of each Loan Document to which the Borrower or any Subsidiary Loan Party is a party, except for (a)the filing of Uniform Commercial Code financing and continuation statements, (b)filings with the United States Patent and Trademark Office and the United States Copyright Office and any successor offices, (c)recordation of the Mortgages, (d)such actions, consents and approvals under Gaming Laws or from Gaming Authorities the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect, (e)such as have been made or obtained and are in full force and effect, (f)such other actions, consents and approvals the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect and (g)filings or other actions listed on Schedule3.04."
"maintained by the Borrower or any Subsidiary is in compliance with the applicable provisions of ERISA and the Code; (ii)no Reportable Event has occurred during the past five years as to which the Borrower, any Subsidiary or any ERISA Affiliate was required to file a report with the PBGC, other than reports that have been filed; (iii)as of the most recent valuation date preceding the date of this Agreement, no Plan has any material Unfunded Pension Liability; (iv)no ERISA Event has occurred or is reasonably expected to occur; (v)none of the Borrower, its Subsidiaries or the ERISA Affiliates (A)has received any written notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated or (B)has incurred or is reasonably expected to incur any withdrawal liability to any Multiemployer Plan; and (vi)none of the Borrower or its Subsidiaries has engaged in a prohibited transaction (as defined in Section406 of ERISA and Code Section4975) in connection with any employee pension benefit plan (as defined in Section3(2) of ERISA) that would subject the Borrower or any Subsidiary to tax."
"(c) The Mortgages, if any, executed and delivered on the Closing Date are, and the Mortgages executed and delivered after the Closing Date pursuant to Section5.10 and Section5.11 will be, effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and enforceable Lien on all of the applicable Loan Parties right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or recorded in the proper real estate filing or recording offices, and all relevant mortgage taxes and recording charges are duly paid, the Collateral Agent (for the benefit of the Secured Parties) shall have valid Liens with record notice to third parties on, and security interest in, all right, title, and interest of the applicable Loan Parties in such Mortgaged Property and, to the extent applicable, subject to Section9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior in right to the Lien of any other person, except for Permitted Liens."
"(a) The Perfection Certificate completely and correctly identifies, in all material respects, as of the Closing Date all Owned Real Property owned by the Loan Parties. As of the Closing Date, the Loan Parties own in fee all the Owned Real Property set forth as being owned by them in the Perfection Certificate except to the extent set forth therein."
"SECTION 3.25. Insurance. Schedule3.25 sets forth a true, complete and correct description, in all material respects, of all material insurance (excluding any title insurance) maintained by or on behalf of the Borrower or the Subsidiaries as of the Closing Date. As of such date, such insurance is in full force and effect."
"(a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the L/C Issuer and the Lenders (i)a counterpart of this Agreement signed on behalf of such party or (ii)written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., pdf)) that such party has signed a counterpart of this Agreement."
"(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,"
"(f) upon the reasonable request of the Administrative Agent not more frequently than once a year unless an Event of Default has occurred and is continuing, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph(f) or Section5.10(f);"
"(h) in the event that CEC or any Parent Entity reports at CEC or such Parent Entitys level on a consolidated basis, then such consolidated reporting at CEC or such Parent Entitys level in a manner consistent with that described in paragraphs (a)and (b) of this Section5.04 for the Borrower will satisfy the requirements of such paragraph; provided that such financial statements are accompanied by consolidating information that explains in reasonable detail the differences between the information relating to the Borrower and its consolidated subsidiaries, on the one hand, and the information relating to CEC or such Parent Entity on a stand-alone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer of the Borrower as having been fairly presented in all material respects; and"
"(f) (i) any material amendment or material modification of any Master Lease or MLSA related to a Master Lease, (ii)receipt of written notice from CPLV Manager, Non-CPLV Manager, CPLV Landlord, Non-CPLV Landlord or CEC of any Default or Event of Default under, and as defined in, the applicable MLSA related to a Master Lease or termination of any MLSA related to a Master Lease and (iii)receipt of a written notice from CPLV Landlord or Non-CPLV Landlord of a Default or Event of Default under and as defined in, the applicable Master Lease or notice of termination of the applicable Master Lease; and"
"SECTION 5.06. Compliance with Laws. Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, including ERISA and all Gaming Laws, except that the Borrower and the Subsidiaries need not comply with any laws, rules, regulations and orders of any Governmental Authority then being contested by any of them in good faith by appropriate proceedings, and except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that this Section5.06 shall not apply to Environmental Laws, which are the subject of Section5.09, or to laws related to Taxes, which are the subject of Section5.03, or to Sanctions, Anti-Money Laundering Laws or Anti-Corruption Laws, which are the subject of Section3.24. The Loan Parties will maintain in effect and enforce policies and procedures reasonably designed to promote compliance in all material respects by the Loan Parties, their Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with Anti-Corruption Laws and Sanctions applicable to the Loan Parties and their Subsidiaries."
"(b) If any asset (other than Real Property, which is covered by paragraph(c) below) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $25.0million is acquired by any Loan Party after the Closing Date (in each case other than (x)assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y)assets constituting Excluded Property), such Loan Party will (i)promptly as practicable notify the Collateral Agent thereof and (ii)take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Collateral Agent to grant and perfect such Liens (subject to any Permitted Liens), including actions described in paragraph(a) of this Section, all at the expense of the Loan Parties, subject to paragraph(g) below."
"(f) Furnish to the Collateral Agent promptly (and in any event within 30 days after such change) written notice of any change (A)in any Loan Partys corporate or organization name, (B)in any Loan Partys identity or organizational structure, (C)in any Loan Partys organizational identification number or (D)in any Loan Partys jurisdiction of organization; provided, that no Loan Party shall effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral for the benefit of the Secured Parties with the same priority as prior to such change."
"(i) Promptly (but in no event later than 20 Business Days (or such longer time as the Administrative Agent shall permit in its reasonable discretion)) following the final completion of construction (as defined in the applicable engineering, procurement and construction contract) of any Project for which a Project Notice was previously delivered to the Administrative Agent, the Borrower shall notify the Administrative Agent of the completion of such Project and, to the extent permitted by the terms of the applicable Project Financing (provided that to the extent the terms of the applicable Project Financing restrict the taking of such actions, the Borrower shall take such actions promptly (but in no event later than 20 Business Days (or such longer period as the Administrative Agent shall permit in its reasonable discretion)) following the cessation of such restrictions), shall take the actions specified in clause (iii)below;"
"(iii) To the extent required by the foregoing clauses (i)and (ii), the Borrower shall (w)release or cause any applicable Subsidiary Loan Party to release all security interests or mortgages on the Real Property subject to such Project securing such Project Financing, (x)grant or cause any applicable Subsidiary Loan Party to grant to the Collateral Agent Additional Mortgages in any such Owned Real Property or Material Leased Real Property of such Loan Party subject to such Project as are not covered by the original Mortgages, constituting valid and enforceable Liens subject to no other Liens except Permitted Liens at the time of recordation thereof, (y)record or file, and cause such Subsidiary Loan Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and (z)pay, and cause such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in"
"(i) (i) Capital Lease Obligations, mortgage financings, slot financing arrangements and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests in any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate outstanding principal amount not to exceed the greater of $100.0million and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii)any Permitted Refinancing Indebtedness in respect thereof;"
"(m) Guarantees (i)by the Borrower or any Subsidiary Loan Party of the Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii)by any Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section6.04 (other than Section6.04(w)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party and (iv)by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purpose in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section6.01(s); provided, that (x)Guarantees by any Loan Party under this Section6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Loan Obligations to at least the same extent such underlying Indebtedness is so subordinated;"
"(cc) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management, tax and accounting operations (including with respect to intercompany self-insurance arrangements) of the Borrower and the Subsidiaries and any Permitted Refinancing Indebtedness in respect thereof;"
"(nn) the filing of a reversion, subdivision or final map(s), record(s) of survey and/or amendments to any of the foregoing over Real Property held by the Loan Parties designed (A)to merge one or more of the separate parcels thereof together so long as (i)the entirety of each such parcel shall be owned by Loan Parties, (ii)no portion of the Mortgaged Property is merged with any Real Property that is not part of the Mortgaged Property and (iii)the gross acreage and footprint of the Mortgaged Property remains unaffected in any material respect or (B)to separate one or more of the parcels thereof together so long as (i)the entirety of each resulting parcel shall be owned by Loan Parties, (ii)no portion of the Mortgaged Property ceases to be subject to a Mortgage and (iii)the gross acreage and footprint of the Mortgaged Property remains unaffected in any material respect;"
"property owned by any Subsidiary that is not a Loan Party regardless of when such property was acquired, (b)with respect to any other property owned by the Borrower or any Domestic Subsidiary, (i)if at the time the lease in connection therewith is entered into, (A)no Event of Default shall have occurred and be continuing or would result therefrom and (B)with respect to any such Sale and Lease-Back Transaction with Net Proceeds in excess of $5.0million, after giving effect to the entering into of such lease, the Borrower shall be in Pro Forma Compliance and (ii)if such Sale and Lease-Back Transaction is of property owned by the Borrower or any Domestic Subsidiary as of the Closing Date, the Net Proceeds therefrom are used to prepay the Term Loans to the extent required by Section2.11(b), (c) in connection with any Project Financing and (d)in connection with transactions permitted by the Master Leases; provided, further, that the Borrower or the applicable Domestic Subsidiary shall receive at least fair market value (as determined by the Borrower in good faith) for any property disposed of in any Sale and Lease- Back Transaction pursuant to clause (a)(ii) or (b)of this Section6.03 (as approved by the Board of Directors of the Borrower in any case of any property with a fair market value in excess of $25.0 million)."
"(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed (i)the greater of $100.0million and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus any returns of capital (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (j)) plus (ii)the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section6.04(j)(ii), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that if any Investment pursuant to this clause (j)is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall, upon the election of the Borrower, thereafter be deemed to have been made pursuant to clause (b)above and shall cease to have been made pursuant to this clause (j)for so long as such person continues to be a Subsidiary of the Borrower;"
"(l) Investments in a Similar Business in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the greater of $75.0million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (l)); provided that if any Investment pursuant to this this clause (l)is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall, upon the election of the Borrower, thereafter be deemed to have been made pursuant to clause (b)above and shall cease to have been made pursuant to this clause (l)for so long as such person continues to be a Subsidiary of the Borrower;"
"SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests in any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except that this Sectionshall not prohibit:"
"(g) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section6.05; provided, that (i)no Event of Default exists or would result therefrom, (ii)the Net Proceeds thereof are applied in accordance with Section2.11(b), (iii) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section6.04 and (iv)no such sale, transfer or other disposition of assets in excess of $25million shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(iv), each of the following shall be deemed to be cash: (A)the amount of any liabilities (as shown on the Borrowers or any Subsidiarys most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B)any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received), (C) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration"
"(a) Restricted Payments may be made to the Borrower or to any Wholly-Owned Subsidiary of the Borrower (or, in the case of non-Wholly-Owned Subsidiaries, to the Borrower or any Subsidiary of the Borrower that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests in such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);"
"(iv) the payment of fees, reasonable out-of-pocket costs and indemnities to directors, officers, consultants and employees of any Parent Entity, the Borrower and the Subsidiaries in the ordinary course of business (limited, in the case of any Parent Entity, to the portion of such fees and expenses that are allocable to the Borrower and the Subsidiaries);"
"(b) (i) Make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on the loans under any Indebtedness of the Borrower or any Subsidiary that is expressly subordinate to the Obligations (Junior Financing), or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination in respect of any Junior Financing except for (A)Refinancings with Permitted Refinancing Indebtedness permitted by Section6.01, (B) payments of regularly scheduled interest and fees due thereunder, other non- accelerated and non-principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Financing to constitute applicable high yield discount obligations within the meaning of Section163(i)(1) of the Code, and payment of principal on the scheduled maturity date of any Junior Financing (or within one year thereof), (C) payments or distributions in respect of all or any portion of the Junior Financing with Excluded RP Contributions, (D)the conversion of any Junior Financing to Equity Interests in the Borrower or any Parent Entity, (E)so long as no Event of Default has occurred and is continuing or would result therefrom and after giving effect to such payment or distribution the Borrower would be in Pro Forma Compliance, payments or distributions in respect of Junior Financings prior to their scheduled maturity made, in an aggregate amount, not to exceed the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section6.09(b)(i)(E), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be applied, (F)other payments or distributions in respect of Junior Financings prior to their schedule maturity date; provided that, no Event of Default has occurred and is continuing or would result therefrom and after giving effect to such Restricted Payment, the Total Leverage Ratio on a Pro Forma Basis would not exceed 2.00 to 1.00, (G) so long as no Event of Default has occurred and is continuing, payments and distributions in respect of Junior Financings prior to their scheduled maturity date may be made in an aggregate amount, together with any Restricted Payments made pursuant to Section6.06(m), equal to the greater of $50.0million and 0.125 times the EBITDA calculated on a Pro Forma Basis for the Test Period and (H)payments or distributions in respect of Indebtedness among the Loan Parties and the Subsidiaries, subject to compliance with the subordination provisions applicable to such Indebtedness; provided, that, for purposes of determining compliance with this Section6.09(b)(i), (A) a payment or other distribution need not be permitted solely by reference to one category of permitted payments or other distributions (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B)in the event that a payment or other distribution (or any portion thereof) meets the criteria of one or more of the categories of permitted payments or other distributions (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such permitted payment or other distribution (or any portion thereof) in any manner that complies with this Section6.09(b)(i) and at the time of classification or reclassification will be entitled to only include the amount and type of such payment or other distribution (or any portion thereof) in one of the categories of permitted payments or other distributions (or any portion thereof) described in the above clauses; or"
"(c) Permit any Material Subsidiary to enter into any agreement or instrument that by its terms restricts (i)the payment of dividends or distributions or the making of cash advances to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii)the granting of Liens by the Borrower or such Material Subsidiary pursuant to the Security Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:"
"(d) Neither Borrower nor any Master Lease Tenant will terminate or allow or consent to the termination of any Master Lease or any MLSA related to a Master Lease or will enter into any amendment, waiver or modification to any Master Lease or any MLSA related to a Master Lease if (i)such amendment, waiver or modification could reasonably be expected to have a Material Adverse Effect or (ii)after giving pro forma effect to such amendment, waiver or modification, Borrower will not be in compliance with the provisions of Section6.11; provided that neither Borrower nor any Master Lease Tenant will allow any amendment, waiver or modification of any Master Lease or any MLSA related to a Master Lease that (i)shortens the term of such Master Lease or MLSA related to a Master Lease to less than twenty (20)years (including extension or renewal options) from the Closing Date, (ii)amends, waives or modifies Articles XIV (Insurance Proceeds), XV (Condemnation), XVII (Leasehold Mortgagees) or XXII (Assignments) of the applicable Master Lease (including by amendment of the defined terms used therein), in each case, in a manner materially adverse to the interests of the Secured"
"(d) default shall be made in the due observance or performance by the Borrower of any covenant, condition or agreement contained in Section5.01(a) (with respect to the Borrower), 5.05(a) or 5.08 or in ArticleVI; provided, that any breach of the Financial Performance Covenant shall not, by itself, constitute an Event of Default under any Term Facility and the Term Loans may not be accelerated as a result thereof unless there are Revolving Facility Loans outstanding that have been accelerated by the Required Revolving Facility Lenders pursuant to the last sentence of this Section7.01 as a result of such breach of the Financial Performance Covenant and the Revolving Facility Commitments have been terminated by the Required Revolving Facility Lenders;"
"giving effect to a pro forma adjustment by which EBITDA shall be increased with respect to such applicable quarter and any four-quarter period that contains such quarter, solely for the purpose of measuring the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; provided, that, (i)in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which a Cure Right is not exercised, (ii)a Cure Right shall not be exercised more than five times during the term of the Revolving Facility, (iii)for purposes of this Section7.02, the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Performance Covenant, (iv)the Cure Amount shall be disregarded for purposes of determining any financial ratio-based conditions, pricing or any baskets with respect to the covenants contained in this Agreement and shall not be included in the calculation of the Cumulative Credit and (v)there shall be no pro forma reduction in Indebtedness with the proceeds of the exercise of the Cure Right for determining compliance with the Financial Performance Covenant for the fiscal quarter in respect of which such Cure Right is exercised (either directly through prepayment or indirectly as a result of the netting of unrestricted cash). If, after giving effect to the adjustments in this Section7.02, the Borrower shall then be in compliance with the requirements of the Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for the purposes of this Agreement."
"(b) Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Each of the Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications."
"(c) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by electronic means shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices or communications (i)sent to an e-mail address shall be deemed received when delivered and (ii)posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i)of notification that such notice or communication is available and identifying the website address therefore."
"website(s) on the Internet at the website(s) address listed on Schedule 9.01, or (ii)on which such documents are posted on the Borrowers behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided, that (A)the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, and (B)the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Except for certificates required by Section5.04(c), the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents."
"(a) The Borrower agrees to pay, within 30 days of written demand therefor (including documentation reasonably supporting such request), (i) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent, the Collateral Agent and the Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent or the Collateral Agent in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (limited, in the case of legal fees and expenses, to the reasonable fees, charges and disbursements of a single primary counsel for the Administrative Agent, the Collateral Agent and the Arrangers, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction and/or a single firm of regulatory counsel, in each case, for all such persons, taken as a whole), and (ii)all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Agents or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder (limited, (i)in the case of legal fees and expenses, to the reasonable fees, charges and disbursements of a single primary"
"(b) The Borrower agrees to indemnify the Administrative Agent, the Agents, the Arrangers, each L/C Issuer, each Lender, each of their respective Affiliates, and each of their respective directors, partners, officers, employees, agents, trustees and advisors (each such person being called an Indemnitee) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements (limited in the case of legal fees to the reasonable documented out-of-pocket legal expenses incurred in connection with investigating or defending any of the items in clauses (i)through (v) below, and excluding the allocated costs of in house counsel and limited to not more than one counsel for all such Indemnitees, taken as a whole, and, if necessary, a single local counsel in each appropriate jurisdiction and/or a single firm of regulatory counsel, in each case, for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel with the Borrowers prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (and local counsel and/or regulatory counsel, in each case, as applicable) for each group of similarly situated Indemnitees)), and, in the case of fees or expenses with respect to any other advisor or consultant, limited solely to the extent the Borrower has consented to the retention of such person, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i)the execution or delivery of the Commitment Letter, the Fee Letter, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of or otherwise relating to the Transactions and the other transactions contemplated hereby, (ii)the use of the proceeds of the Loans or the use of any Letter of Credit, (iii)any violation of or liability under Environmental Laws by the Borrower or any Subsidiary, (iv)any actual or alleged presence, Release or threatened Release of or exposure to Hazardous Materials at, under, on, from or to any property owned, leased or operated by the Borrower or any Subsidiary or (v)any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrower or any of their subsidiaries or Affiliates; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x)are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1)the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties (for purposes of this proviso only, each of the Agents, any Arranger, any L/C Issuer and any Lender shall be treated as several and separate Indemnitees, but each of them together with its respectively Related Parties (other than advisors), shall be treated as a single Indemnitee) or (2)any material breach of any Loan Document, the Commitment Letter or the Fee Letter by such Indemnitee or any of its Related Parties or (y)arose from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of its Affiliates and is brought by an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any Agent, Arranger or L/C Issuer in its capacity as such); provided further, that such indemnity shall not, as to any Indemnitee, be available with respect to any settlement entered into by such Indemnitee or any of its Related Parties without the Borrowers written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided further, that such indemnity shall not, as to any Indemnitee, be available with respect to any"
"expenses of the type referred to in Section9.05(a) except to the extent such expenses would otherwise be of the type referred to in this Section9.05(b). None of the Indemnitees (or any of their respective Affiliates) shall be responsible or liable to the Borrower or any of its subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Arranger, any L/C Issuer or any Lender. All amounts due under this Section9.05 shall be payable within fifteen (15)days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested."
"(d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby."
"(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x)as provided in Section2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Administrative Agent (and consented to by the Required Lenders), and (z)in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and consented to by the Required Lenders; provided, however, that no such agreement shall:"
"provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or an L/C Issuer hereunder without the prior written consent of the Administrative Agent or such L/C Issuer acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section9.08 and any consent by any Lender pursuant to this Section9.08 shall bind any successor or assignee of such Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have the right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be affected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y)any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender."
"1\. Assignor. The Assignor (a)represents and warrants that (i)it is the legal and beneficial owner of the Assigned Interest, (ii)the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii)it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby, and (b)assumes no responsibility with respect to (i)any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii)the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other person obligated in respect of any Loan Document or (iv)the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other person of any of their respective obligations under any Loan Document."
"(b) Entry on Mortgaged Property. Enter the Mortgaged Property and take exclusive possession thereof and of all books, records and accounts relating thereto or located thereon. If Mortgagor remains in possession of the Mortgaged Property following the occurrence and during the continuance of an Event of Default and without Mortgagees prior written consent, Mortgagee may invoke any legal remedies to dispossess Mortgagor."
"Section6.3 Bankruptcy Provisions. Without limitation of the absolute nature of the assignment of the Rents hereunder, to the extent permitted under applicable law, Mortgagor and Mortgagee agree that (a)this Mortgage shall constitute a security agreement for purposes of Section552(b) of the Bankruptcy Code, (b)the security interest created by this Mortgage extends to property of Mortgagor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents and (c)such security interest shall extend to all Rents acquired by the estate after the commencement of any case in bankruptcy."
Section7.3 Fixture Filing. This Mortgage shall also constitute a fixture filing for the purposes of the UCC against all of the Mortgaged Property which is or is to become fixtures. The information provided in this Section7.3 is provided so that this Mortgage shall comply with the requirements of the UCC for a mortgage instrument to be filed as a financing statement. Mortgagor is the Debtor and its name and mailing address are set forth in the preamble of this Mortgage (immediately preceding ArticleI). Mortgagee is the Secured Party for purposes of the UCC and its name and mailing address from which information concerning the security interest granted herein may be obtained are also set forth in the preamble of this Mortgage (immediately preceding ArticleI). A statement describing the portion of the Mortgaged Property comprising the fixtures hereby secured is set forth in the definition of Mortgaged Property in Section1.1. Mortgagor represents and warrants to Mortgagee that Mortgagor is the record owner of the Mortgaged Property.
"Section8.6 WAIVER OF JURY TRIAL. MORTGAGOR AND, BY ITS ACCEPTANCE HEREOF, MORTGAGEE, EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). MORTGAGOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF MORTGAGEE OR ANY OTHER SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT MORTGAGEE OR SUCH OTHER SECURED PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER."
"Section2.6 No Release. Nothing set forth in this Mortgage shall relieve Mortgagor from the performance of any term, covenant, condition or agreement on Mortgagors part to be performed or observed under or in respect of any of the Mortgaged Property or from any liability to any person under or in respect of any of the Mortgaged Property or shall impose any obligation on Mortgagee or any other Secured Party to perform or observe any such term, covenant, condition or agreement on Mortgagors part to be so performed or observed or shall impose any liability on Mortgagee or any other Secured Party for any act or omission on the part of Mortgagor relating thereto or for any breach of any representation or warranty on the part of Mortgagor contained in this Mortgage or any other Loan Document, or under or in respect of the Mortgaged Property or made in connection herewith or therewith. The obligations of Mortgagor contained in this Section2.6 shall survive the termination hereof and the discharge of Mortgagors other obligations under this Mortgage and the other Loan Documents."
"Mortgagee may adjourn from time to time any sale by it to be made under or by virtue hereof by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and Mortgagee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned."
"provided, that in no event shall (x)the proceeds of any collection or sale of any Specified Excluded Collateral be applied to the relevant Series of Obligations under any Other First Lien Agreement or replacement Credit Agreement that is not secured by such Specified Excluded Collateral or (y)the Mortgaged Property or the proceeds of any collection or sale of any Mortgaged Property of Mortgagor be applied to any Excluded Swap Obligations."
"Section6.3 Bankruptcy Provisions. Without limitation of the absolute nature of the assignment of the Rents hereunder, to the extent permitted under applicable law, Mortgagor and Mortgagee agree that (a)this Mortgage shall constitute a security agreement for purposes of Section552(b) of the Bankruptcy Code, (b)the security interest created by this Mortgage extends to property of Mortgagor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents and (c)such security interest shall extend to all Rents acquired by the estate after the commencement of any case in bankruptcy."
"Section8.10 Headings; Interpretation. The Article, Section and Subsection titles hereof are inserted for convenience of reference only and shall in no way alter, modify or define, or be used in construing, the text of such Articles, Sections or Subsections. All Articles, Sections, Subsections or Exhibits are references to the Articles, Sections, Subsections or Exhibits of this Mortgage unless otherwise expressly stated."
"Section8.11 Severability. In the event any one or more of the provisions contained in this Mortgage should be held invalid, illegal or unenforceable in any respect, such provision shall be enforced to the maximum extent permitted by law and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Mortgagor and Mortgagee shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions."
"Section8.12 Entire Agreement. This Mortgage and the other Loan Documents embody the entire agreement and understanding between Mortgagor and Mortgagee relating to the subject matter hereof and thereof and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the applicable Loan Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties."
"Section8.17 Relationship. The relationship of Mortgagee to Mortgagor hereunder is strictly and solely that of creditor and debtor and mortgagor and mortgagee and nothing contained in the Credit Agreement, the Collateral Agreement, any Other First Lien Agreement, this Mortgage, any other Loan Document or any other document or instrument now existing and delivered in connection therewith or otherwise in connection with the Obligations is intended to create, or shall in any event or under any circumstance be construed as creating a partnership, joint venture, tenancy-in-common, joint tenancy or other relationship of any nature whatsoever between Mortgagee and Mortgagor other than as creditor and debtor and mortgagor and mortgagee."
"Pursuant to that certain Credit Agreement, dated as of October6, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified, refinanced or replaced from time to time, the Credit Agreement), among Caesars Entertainment Operating Company, Inc., a Delaware corporation, CEOC, LLC, a Delaware limited liability company, the Lenders party thereto from time to time, Credit Suisse AG, Cayman Islands Branch, as administrative agent for the Lenders and collateral agent for the Secured Parties, the Lenders and the L/C Issuers have agreed to extend credit to the Borrower (as defined below)."
"Section2.4 [Maximum Amount of Indebtedness. The maximum aggregate amount of the unpaid principal indebtedness secured hereby (exclusive of interest thereon, and advances for the payment of taxes, assessments, insurance premiums or costs incurred for the protection of the Mortgaged Property) that may be outstanding at any time is [] and No/100 Dollars ($[]) (the Secured Amount), plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered hereby or the Lien hereof, and expenses incurred by each of Trustee and Beneficiary by reason of any default by Grantor under the terms hereof, together with interest thereon, all of which amount shall be secured hereby."
"Section5.4 Release of and Resort to Collateral. Beneficiary, and, at Beneficiarys written direction, Trustee, may release, regardless of consideration and without the necessity for any notice to or consent by the holder of any subordinate Lien on the Mortgaged Property, any part of the Mortgaged Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the Lien or security interest created in or evidenced by any applicable Loan Documents or their status as a first priority Lien and security interest in and to the Mortgaged Property. For payment of the Obligations, Beneficiary may resort to any other security in such order and manner as Beneficiary may elect."
"(a) FIRST, to the payment of all fees and reasonable and documented out-of- pocket costs and expenses incurred by Trustee or Beneficiary of taking possession of the Mortgaged Property and of holding, using, leasing, repairing, improving and selling the same, or otherwise in connection with this Deed of Trust, any other Loan Document or any of the Obligations secured by such Mortgaged Property, including, without limitation (1)receivers fees and expenses, including the repayment of the amounts evidenced by any receivers certificates, (2)all court costs, (3)the reasonable fees and expenses of Beneficiarys agents and legal counsel and Trustees agents and legal counsel, (4)the repayment of all advances made by Trustee or Beneficiary hereunder or under any other Loan Document on behalf of any applicable Loan Party, (5)any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any applicable Loan Document and (6)costs of advertisement;"
"Unless otherwise required by applicable law, Beneficiary shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Deed of Trust. Subject to applicable law, upon any sale of Mortgaged Property by Beneficiary (and/or Trustee as so required by applicable law) (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by Beneficiary or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to Beneficiary or such officer or be answerable in any way for the misapplication thereof."
"Section6.2 Perfection Upon Recordation. Grantor acknowledges that it has taken all actions necessary to obtain, and that upon recordation of this Deed of Trust, Beneficiary shall have, to the extent permitted under applicable law, a valid and fully perfected, first priority, present assignment of the Rents arising out of the Leases and all security for such Leases. Grantor acknowledges and agrees that upon recordation of this Deed of Trust, Beneficiarys interest in the Rents, to the extent permitted under applicable law, shall be deemed to be fully perfected, choate and enforced as to Grantor and to the extent permitted under applicable law, all third parties, including, without limitation, any subsequently appointed trustee in any case under Title 11 of the United States Code (the Bankruptcy Code), without the necessity of commencing a foreclosure action with respect to this Deed of Trust, making formal demand for the Rents, obtaining the appointment of a receiver or taking any other affirmative action."
"Section7.1 Security Interest. This Deed of Trust constitutes a security agreement on personal property within the meaning of the UCC and other applicable law and with respect to the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards and Records. To this end, Grantor grants to Beneficiary a first priority security interest in the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax"
"shall refer to the party named in the first paragraph of this Deed of Trust and to any subsequent owner of all or any portion of the Mortgaged Property. All persons who may have or acquire an interest in the Premises shall be deemed to have notice of, and be bound by, the terms of the Collateral Agreement and the other Loan Documents; provided, however, that no such party shall be entitled to any rights thereunder without the prior written consent of Beneficiary."
"(g) In connection with any termination or release pursuant to this Section8.7, Beneficiary and/or Trustee shall execute and deliver to Grantor, at Grantors expense, all documents that Grantor shall reasonably request and reconveyances to evidence such termination or release (including, without limitation, deed of trust releases or UCC amendment or termination statements, as applicable), and will duly assign and transfer to Grantor, such of the Mortgaged Property that may be in the possession of Trustee or Beneficiary and has not theretofore been sold or otherwise applied or released pursuant to this Deed of Trust. Any execution and delivery of documents pursuant to this Section8.7 shall be without recourse to or warranty by Trustee and Beneficiary. In connection with any release pursuant to this Section8.7, Grantor shall be permitted to take any action in connection therewith consistent with such release including, without limitation, the filing of UCC termination statements. Upon the receipt of any necessary or proper instruments of termination, satisfaction or release (forms of which shall be reasonably acceptable to Beneficiary and/or Trustee) prepared by the Borrower pursuant to this Section8.7, Beneficiary and/or Trustee shall execute, deliver or acknowledge such instruments or releases to evidence the release of the Mortgaged Property permitted to be released pursuant to this Deed of Trust. Grantor agrees to pay all reasonable and documented out-of-pocket expenses incurred by Beneficiary and/or Trustee (and its representatives and counsel) in connection with the execution and delivery of such release documents or instruments."
"(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Deed of Trust or any other Loan Document in any New York State or federal court of the United States of America sitting in New York City, and any appellate court from any thereof. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court."
"(a) Notwithstanding anything herein to the contrary, (i)the Liens and security interests granted herein to Beneficiary for the benefit of the Secured Parties pursuant to this Deed of Trust and (ii)the exercise of any right or remedy by Beneficiary hereunder or the application of proceeds (including insurance and condemnation proceeds) of any Mortgaged Property, in each case, are subject to the limitations and provisions of any applicable Intercreditor Agreement to the extent provided therein. In the event of any conflict between the terms of such applicable Intercreditor Agreement and the terms of this Deed of Trust, the terms of such applicable Intercreditor Agreement shall govern."
"(b) To the extent contemplated by Section9.05 of the Credit Agreement or any equivalent provision of any Other First Lien Agreement, Grantor shall pay all reasonable and documented out-of-pocket expenses (including reasonable attorneys fees and expenses) of or incidental to the perfection and enforcement of this Deed of Trust or the enforcement, compromise or settlement of the Obligations or any claim under this Deed of Trust, and for the curing thereof, or for defending or asserting the rights and claims of Trustee or Beneficiary in respect thereof, by litigation or otherwise."
"(a) No failure or delay by Beneficiary or any other Secured Party in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies of Beneficiary and any other Secured Party hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers or remedies that they would otherwise have. No waiver of any provision of this Deed of Trust or consent to any departure by Grantor therefrom shall in any event be effective unless the same shall be permitted by Section8.5(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan, the issuance of a Letter of Credit or the incurrence of any Other First Lien Obligations shall not be construed as a waiver of any Default or Event of Default, regardless of whether Beneficiary or any other Secured Party may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on Grantor in any case shall entitle Grantor to any other or further notice or demand in similar or other circumstances."
"(a) Grantor agrees that Beneficiary shall be entitled to reimbursement of its expenses incurred hereunder by Grantor, and Beneficiary and other Indemnitees shall be indemnified by Grantor, in each case of this clause (a), mutatis mutandis, as provided in Section9.05 of the Credit Agreement (or any Equivalent Provision thereof) or any equivalent provision of any Other First Lien Agreement."
"(c) Beneficiary may remove Trustee at any time or from time to time and select a successor trustee. In the event of the death, removal, resignation, refusal to act, inability to act or absence of Trustee from the state in which the Premises are located, or in its sole discretion for any reason whatsoever, Beneficiary may, upon notice to Grantor and without specifying the reason therefore and without applying to any court, select and appoint a successor trustee, and all powers, rights, duties and authority of the former trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of his duties unless required by Beneficiary. Such substitute trustee shall be appointed by written instrument duly recorded in the county where the Land is located. Grantor hereby ratifies and confirms any and all acts that the herein named Trustee, or his successor or successors in this trust, shall do lawfully by virtue hereof. Grantor hereby agrees, on behalf of itself and its heirs, executors, administrators and assigns, that the recitals contained in any deed or deeds executed in due form by any Trustee or substitute trustee, acting under the provisions of this instrument, shall be prima facie evidence of the facts recited, and that it shall not be necessary to prove in any court, otherwise than by such recitals, the existence of the facts essential to authorize the execution and delivery of such deed or deeds and the passing of title thereby;"
"3\. The Permitted Loan Assignee (a)represents and warrants that (i)it is legally authorized to enter into this Permitted Loan Purchase Assignment and Acceptance and has taken all action necessary to execute and deliver this Permitted Loan Purchase Assignment and Acceptance and to consummate the transaction contemplated hereby and (ii)it is not in possession of material non-public information (within the meaning of United States federal and state securities laws) with respect to the Borrower, its Subsidiaries or their respective securities (or, if none of the Borrower, CEC or any Parent"
"Reference is made to the Credit Agreement dated as of October6, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Caesars Entertainment Operating Company, Inc., CEOC, LLC, the Lenders party thereto from time to time and Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, together with its successors and assigns in such capacity, the Administrative Agent) and the collateral agent for the Secured Parties. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement."
"Notwithstanding the foregoing, nothing contained in the subordination provisions set forth above is intended to or will impair, as between each Issuer and each Holder, the obligations of such Issuer, which are absolute and unconditional, to pay to such Holder the principal of and interest on this Note as and when due and payable in accordance with its terms, or is intended to or will affect the relative rights of such Holder and other creditors of such Issuer other than the holders of Senior Indebtedness."
"Each Holder is hereby authorized to record all loans and advances or other credit extensions made by it to any Issuer (all of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained therein. For the avoidance of doubt, this Note as between each Issuer and each Holder contains additional terms to any intercompany loan agreement between them and this Note does not in any way replace such intercompany loans between them nor does this Note in any way change the principal amount of any intercompany loans between them."
"This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this Agreement) is made and entered into as of _______________ by and between [TENANT] (Tenant), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity, the Collateral Agent) pursuant to that certain Credit Agreement dated as of October6, 2017 (the Credit Agreement) among Caesars Entertainment Operating Company, Inc., a Delaware corporation, CEOC, LLC, a Delaware limited liability company, the lenders party thereto from time to time and Credit Suisse AG, Cayman Islands Branch, as administrative agent for the lenders and collateral agent for the Secured Parties (as defined in the Credit Agreement)."
"1\. Subordination. Notwithstanding anything to the contrary set forth in the Lease, the Lease and the leasehold estate created thereby and all of Tenants rights thereunder are and shall at all times be subject and subordinate in all respects to the Security Instruments and the lien thereof, and to all rights of Collateral Agent thereunder, and to any and all advances to be made thereunder, and to all renewals, modifications, consolidations, replacements and extensions thereof."
"(f) bound by any assignment, subletting, renewal, extension or any other agreement or modification of the Lease made without the written consent of Collateral Agent except to the extent such things (i)are expressly permitted under the terms of the Lease or (ii)do not materially adversely affect Collateral Agents or Landlords rights and obligations under the Lease; or"
"8\. Notices. All notices or other written communications hereunder shall be deemed to have been properly given (i)upon delivery, if delivered in person with receipt acknowledged by the recipient thereof, (ii)three (3) Business Days (hereinafter defined) after having been deposited for overnight delivery with any reputable overnight courier service, or (iii)five (5) Business Days after having been deposited in any post office or mail depository regularly maintained by the United States Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the receiving party at its address set forth on its signature page hereto or addressed as such party may from time to time designate by written notice to the other parties. For purposes of this Section8, the term Business Day shall mean any day other than Saturday, Sunday or any other day on which banks are required or authorized to close in New York, New York or Las Vegas, Nevada. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications."
"9\. Successors. The obligations and rights of the parties pursuant to this Agreement shall bind and inure to the benefit of the successors, assigns, heirs and legal representatives of the respective parties; provided, however, that in the event of the assignment or transfer of the interest of Collateral Agent, all obligations and liabilities of Collateral Agent under this Agreement shall terminate, and thereupon all such obligations and liabilities shall be the responsibility of the party to whom Collateral Agents interest is assigned or transferred. In addition, Tenant acknowledges that all references herein to Landlord shall mean the owner of the landlords interest in the Lease, even if said owner shall be different from the Landlord, named in the Recitals."
"Copyright License means any written agreement, now or hereafter in effect, granting any right to any Pledgor under any copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise and all registrations and applications for registration of any such Copyright in the United States or"
"Equity Interests of any person means any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any shares of common or preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing."
"Real Property means, collectively, all right, title and interest (including, without limitation, any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Pledgor, together with, in each case, all easements, hereditaments and appurtenances relating thereto, and all improvements situated, placed or constructed upon, or fixed to or incorporated into, or which becomes a component part of such real property, and appurtenant fixtures incidental to the ownership or lease thereof."
"promptly (and in any event within 60 days of their receipt (or such longer time as the Collateral Agent shall permit in its reasonable discretion)) delivered to the Collateral Agent, for the benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Collateral Agent)."
"(a) Each Pledgor agrees promptly (and in any event within 30 days after such change, or such longer period of time as may be agreed by the Collateral Agent) to notify the Collateral Agent in writing of any change (i)in its legal name, (ii)in its identity or type of organization or corporate structure, (iii)in its organizational identification number or (iv)in its jurisdiction of organization. Each Pledgor agrees promptly to provide the Collateral Agent with certified organizational documents reflecting any of the changes described in the immediately preceding sentence. Each Pledgor agrees not to effect or permit any change referred to in the first sentence of this paragraph (a)unless all filings have been made, or will have been made within any applicable statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Article 9 Collateral, for the benefit of the Secured Parties, with the same priority as prior to such change. Each Pledgor agrees promptly to notify the Collateral Agent if any material portion of the Article9 Collateral owned or held by such Pledgor is damaged or destroyed."
"(f) Each Pledgor (rather than the Collateral Agent or any Secured Party) shall remain liable for the observance and performance of all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article9 Collateral and each Pledgor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance."
"(b) Commercial Tort Claims. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $15,000,000, such Pledgor shall promptly notify the Collateral Agent thereof in a writing signed by such Pledgor, including a summary description of such claim, and grant to the Collateral Agent in writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Collateral Agent."
"(h) Upon and during the continuance of an Event of Default, at the request of the Collateral Agent, each Pledgor shall use commercially reasonable efforts to obtain all requisite consents or approvals from the licensor under each Copyright License, Patent License or Trademark License that constitutes Article 9 Collateral to effect the assignment of all such Pledgors right, title and interest thereunder to (in the Collateral Agents sole discretion) the designee of the Collateral Agent or the Collateral Agent; provided, however, that nothing contained in this Section4.05(h) should be construed as an obligation of any Pledgor to incur any costs or expenses in connection with obtaining such approval."
"SECTION 7.04Binding Effect; Several Agreement. This Agreement shall become effective as to any party to this Agreement when a counterpart hereof executed on behalf of such party shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such party and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such party, the Collateral Agent and the other Secured Parties and their respective permitted successors and assigns, except that no party shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as not prohibited by this Agreement, the Credit Agreement and any Other First Lien Agreement. This Agreement shall be construed as a separate agreement with respect to each party and may be amended, modified, supplemented, waived or released in accordance with Section7.09 or 7.15, as applicable."
"(b) A Subsidiary Loan Party shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Subsidiary Loan Party shall be automatically released upon the consummation of any transaction not prohibited by the Credit Agreement or any Other First Lien Agreement as a result of which such Subsidiary Loan Party ceases to be a Subsidiary of the Borrower or otherwise becomes an Excluded Subsidiary or ceases to be a Pledgor, all without delivery of any instrument or performance of any act by any party, and all rights to the applicable portions of the Collateral shall revert to such Subsidiary Loan Party."
"SECTION 7.17Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender, the Administrative Agent and each L/C Issuer is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender, the Administrative Agent or such L/C Issuer to or for the credit or the account of any party to this Agreement against any of and all the obligations of such party now or hereafter existing under this Agreement owed to such Lender, the Administrative Agent or such L/C Issuer, irrespective of whether or not such Lender, the Administrative Agent or such L/C Issuer shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender, the Administrative Agent and L/C Issuer under this Section7.17 are in addition to other rights and remedies (including other rights of set-off) that such Lender, the Administrative Agent and such L/C Issuer may have."
"(a) the pledge of the Pledged Stock of any Pledgor, any subsidiary of any Pledgor or any other person that is a licensee or registered holding company under the Gaming Laws (x)applicable in the Commonwealth of Kentucky (Kentucky Gaming Laws) (any such entity, a Kentucky Licensee), (y) applicable in the State of Mississippi (Mississippi Gaming Laws) (any such entity, a Mississippi Licensee) or (z)applicable in the State of Nevada (Nevada Gaming Laws) (any such entity, a Nevada Licensee), pursuant to this Agreement or any other Loan Document, will not be effective without the prior approval of the Gaming Authorities having jurisdiction in Kentucky (the Kentucky Gaming Authorities), Mississippi (the Mississippi Gaming Authorities) or Nevada (the Nevada Gaming Authorities), as applicable, and no certificates evidencing any such Pledged Stock may be delivered to the Collateral Agent until such approval has been obtained. Furthermore, no amendment of this Agreement shall be effective until any approvals required from the Kentucky Gaming Authorities under the Kentucky Gaming Laws, the Mississippi Gaming Authorities under the Mississippi Gaming Laws or the Nevada Gaming Authorities under the Nevada Gaming Laws, as applicable, have been obtained;"
"SECTION 7.24Application of Gaming Laws and Liquor Laws. Notwithstanding anything herein to the contrary and without limiting Section7.19, this Agreement and any Other First Lien Agreement are subject to Gaming Laws and Liquor Laws. Without limiting the foregoing, the Secured Parties acknowledge that (i)they are subject to the jurisdiction of the Gaming Authorities and Liquor Authorities, in their discretion, for licensing, qualification or findings of suitability or to file or provide other information, and (ii)all rights, remedies and powers in or under this Agreement and the other Loan Documents, including with respect to the Collateral (including the pledge and delivery of the Pledged Collateral), the Mortgaged Properties and the ownership and operation of facilities may be subject to the jurisdiction of the Gaming Authorities and Liquor Authorities, and may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of the Gaming Laws and Liquor Laws and only to the extent that required approvals (including prior approvals), if any, are obtained from the relevant Gaming Authorities and Liquor Authorities."
"(iii) appoints and authorizes the Collateral Agent to take such action as agent on its behalf and on behalf of all other Secured Parties and to exercise such powers under the Collateral Agreement, each other Security Document applicable to the New Secured Parties and the Intercreditor Agreements as are delegated to the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto;"
(v) confirms the authority of the Collateral Agent to enter into such agreements on its behalf and on behalf of the New Secured Parties and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to it and the New Secured Parties as fully as if it had been a party to each such agreement on behalf of itself and the New Secured Parties.
"provided, however, that the foregoing pledge, assignment and grant of security interest will not cover any Excluded Property[, including any intent-to-use applications for trademark or service mark registrations filed pursuant to Section1(b) of the Lanham Act, 15 U.S.C.  1051, unless and until an Amendment to Allege Use or a Statement of Use under Sections 1(c) or 1(d) of the Lanham Act has been filed, to the extent, if any, that any assignment of an intent-to-use application prior to such filing would violate the Lanham Act]."
"WHEREAS, Caesars Entertainment Operating Company, Inc., CEOC, LLC, the Lenders party thereto from time to time, Credit Suisse AG, Cayman Islands Branch, as administrative agent for the Lenders, the Collateral Agent and the other parties thereto have entered into a Credit Agreement, dated as of October6, 2017 (as amended, restated, amended and restated, replaced, substituted, supplemented or otherwise modified from time to time, the Credit Agreement), providing for the making of Loans to and the issuance of and participation in Letters of Credit;"
"(3) In connection with any release pursuant to this Section5(i), the Collateral Agent shall execute and deliver to any Loan Party, at such Loan Partys expense, all documents that such Loan Party shall reasonably request to evidence such release. Any execution and delivery of documents pursuant to this Section5(i) shall be without recourse to or warranty by the Collateral Agent."
"6. | INDEMNITY, SUBROGATION AND SUBORDINATION. ---|--- (a) Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section6(c)), the Borrower agrees that (i)in the event a payment shall be made by any Guarantor under this Guaranty in respect of any Guaranteed Obligation, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (ii)in the event any assets of any Guarantor shall be sold pursuant to this Guaranty or any other Security Document to satisfy in whole or in part a Guaranteed Obligation, the Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold."
"10. | WAIVER OF JURY TRIAL. ---|--- EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10."
"14. | KEEPWELL. ---|--- Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section14 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section14, or otherwise under this Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Termination Date. Each Qualified ECP Guarantor intends that this Section14 constitute, and this Section14 shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of each other Guarantor for all purposes of Section1a(18)(A)(v)(II) of the Commodity Exchange Act."
"Credit Agreement means that certain Credit Agreement, dated as of October6, 2017, among Caesars Entertainment Operating Company, Inc., the Borrower, the lending institutions from time to time parties thereto, the Administrative Agent and the other parties thereto as amended, restated, amended and restated, supplemented or otherwise modified, Refinanced or replaced from time to time, including, in the event such Credit Agreement is terminated or replaced and the Borrower subsequently enters into any Credit Agreement (as defined in the Initial Other First Lien Agreement (or the Equivalent Provision thereof)), the Credit Agreement designated by the Borrower to be the Credit Agreement hereunder."
"First Lien Obligations means, collectively, (i)the Credit Agreement Secured Obligations, (ii)each Series of Other First Lien Obligations and (iii)any other First Lien Hedging Obligations and First Lien Cash Management Obligations (which shall be deemed to be part of the Series of Other First Lien Obligations to which they relate to the extent provided in the applicable Other First Lien Agreement)."
"(1) any case commenced by or against any Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of any Grantor, any receivership or assignment for the benefit of creditors relating to any Grantor or any similar case or proceeding relative to any Grantor or its creditors, as such, in each case whether or not voluntary;"
"Lien shall mean, with respect to any asset, (a)any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset and (b)the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall an operating lease, any Master Lease or any Additional Lease or an agreement to sell be deemed to constitute a Lien."
"(c) Each of the Authorized Representatives agrees that it will not accept any Lien on any Collateral for the benefit of any Series of First Lien Obligations (other than funds deposited for the discharge or defeasance of any Secured Credit Documents governing such Series of First Lien Obligations) other than pursuant to the First Lien Security Documents, and by executing this Agreement (or a Joinder Agreement), each Authorized Representative and the Series of First Lien Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement and the other First Lien Security Documents applicable to it."
"(a) The Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee and/or gratuitous agent for the benefit of each other First Lien Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section2.09. Pending delivery to the Collateral Agent, each other Authorized Representative agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee and/or gratuitous agent for the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section2.09."
"would otherwise be entitled as a result of holding any First Lien Obligations. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Collateral Agent, the Applicable Authorized Representative or any other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non- Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the First Lien Secured Parties waives any claim it may now or hereafter have against the Collateral Agent or the Authorized Representative of any other Series of First Lien Obligations or any other First Lien Secured Party of any other Series arising out of (i)any actions which the Collateral Agent, any Authorized Representative or any First Lien Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the First Lien Security Documents or any other agreement related thereto or to the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations, (ii)any election by any Applicable Authorized Representative or any holders of First Lien Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section1111(b) of the Bankruptcy Code or (iii)subject to Section2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section364 of the Bankruptcy Code by, the Borrower or any of its subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any First Lien Obligations pursuant to Section9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of First Lien Obligations for whom such Collateral constitutes Shared Collateral."
"(iii) shall not, except as expressly set forth herein and in the other First Lien Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;"
"(v) shall not be responsible for or have any duty to ascertain or inquire into (i)any statement, warranty or representation made in or in connection with this Agreement or any other First Lien Security Document, (ii)the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii)the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv)the validity, enforceability, effectiveness or genuineness of this Agreement, any other First Lien Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the First Lien Security Documents, (v)the value or the sufficiency of any Collateral for any Series of First Lien Obligations, or (v)the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent;"
"(c) Each First Lien Secured Party hereby waives any claim it may now or hereafter have against the Collateral Agent, any Authorized Representative of any other Series of First Lien Obligations or any other First Lien Secured Party of any other Series of First Lien Obligations arising out of (i)any actions which the Collateral Agent (or any of its representatives), any such Authorized Representative (or any of its representatives) or any such First Lien Secured Party takes or omits to take (including actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, disposition, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with any relevant First Lien Security Documents, or any other agreement related thereto, or to the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations; provided that nothing in this clause (i)shall be construed to prevent or impair the rights of the Collateral Agent or any Authorized Representative to enforce this Agreement, (ii)any election by the Collateral Agent (or any of its agents) or the Applicable Authorized Representative or any other First Lien Secured Party, in any proceeding instituted under the Bankruptcy Code or any similar provision in any applicable Bankruptcy Law, of the application of Section1111(b) of the Bankruptcy Code or any similar provision in any applicable Bankruptcy Law, or (iii)subject to Section2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section364 of the Bankruptcy Code or any similar provision in any applicable Bankruptcy Law by, the Borrower or any of its Subsidiaries, as debtor-in- possession."
"SECTION 4.06Resignation of Collateral Agent. The Collateral Agent may at any time give notice of its resignation as Collateral Agent under this Agreement and the other First Lien Security Documents to each Authorized Representative and the Borrower. Upon receipt of any such notice of resignation, the Applicable Authorized Representative shall have the right (subject, unless an Event of Default relating to the commencement of an Insolvency or Liquidation Proceeding has occurred and is continuing, to the consent of the Borrower (not to be unreasonably withheld or delayed)), to appoint a successor, which shall be a bank or trust company with an office in the United States, or an Affiliate of any such bank or trust company with an office in the United States. If no such successor shall have been so appointed by the Applicable Authorized Representative and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the First Lien Secured Parties, appoint a successor Collateral Agent meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the Borrower and each Authorized Representative that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a)the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other First Lien Security Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the First Lien Secured Parties under any of the First Lien Security Documents, the retiring Collateral Agent shall continue to hold such collateral security solely for purposes of maintaining the perfection of the security interests of the First Lien Secured Parties therein until such time as a successor Collateral Agent is appointed but with no obligation to take any further action at the request of the Applicable Authorized Representative, any other First Lien Secured Parties or any Grantor) and (b)all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Authorized Representative directly, until such time as the Applicable Authorized Representative appoints a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successors appointment as Collateral Agent hereunder and under the First Lien Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other First Lien Security Documents (if not"
"other creditor thereof shall have any obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Sections 2.04, 2.05, 2.08, 2.09, 5.02(c), 5.11 and 5.12) is intended to or will amend, waive or otherwise modify the provisions of the Credit Agreement or any Other First Lien Agreements and the Borrower and the other Grantors may rely on such provisions). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms."
"SECTION 5.13Integration. This Agreement together with the other Secured Credit Documents and the First Lien Security Documents represents the agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, the Collateral Agent, or any other First Lien Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents or the First Lien Security Documents."
"Series means (a)the Credit Agreement Secured Obligations and each series of Other First Priority Lien Obligations, each of which shall constitute a separate Series of Senior Lender Claims and (b)the Initial Second Priority Claims and each series of Other Second Priority Lien Obligations, each of which shall constitute a separate Series of Second Priority Claims."
"Subsidiary shall mean, with respect to any person (herein referred to as the parent), any corporation, partnership, association or other business entity (a)of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b)that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent."
"2.1 Subordination of Liens. Notwithstanding (i)the date, time, method, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) of any Liens granted to any Second Priority Agent or Second Priority Secured Parties on the Common Collateral or of any Liens granted to any First Lien Agent or Senior Lenders on the Common Collateral, (ii)any provision of the UCC, any Bankruptcy Law, or any applicable"
"law or the Second Priority Documents or the Senior Lender Documents, (iii)whether any First Lien Agent, either directly or through agents, holds possession of, or has control over, all or any part of the Common Collateral, (iv)the fact that any such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v)any other circumstance of any kind or nature whatsoever, each Second Priority Agent, on behalf of itself and each applicable Second Priority Secured Party, hereby agrees that: (a)any Lien on the Common Collateral securing any Senior Lender Claims now or hereafter held by or on behalf of any First Lien Agent or any Senior Lenders or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Common Collateral securing any Second Priority Claims and (b)any Lien on the Common Collateral securing any Second Priority Claims now or hereafter held by or on behalf of any Second Priority Agent or any Second Priority Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Common Collateral securing any Senior Lender Claims. All Liens on the Common Collateral securing any Senior Lender Claims shall be and remain senior in all respects and prior to all Liens on the Common Collateral securing any Second Priority Claims for all purposes, whether or not such Liens securing any Senior Lender Claims are subordinated to any Lien securing any other obligation of the Borrower, any other Grantor or any other Person."
"2.2 Prohibition on Contesting Liens. Each Second Priority Agent, for itself and on behalf of each applicable Second Priority Secured Party, and each First Lien Agent, for itself and on behalf of each Senior Lender in respect of which it serves as First Lien Agent, agrees that it shall not (and hereby waives any right to) take any action to challenge, contest or support any other Person in contesting or challenging, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, perfection, priority or enforceability of (a)a Lien securing any Senior Lender Claims held (or purported to be held) by or on behalf of any First Lien Agent or any of the Senior Lenders or any agent or trustee therefor in any Senior Lender Collateral or (b)a Lien securing any Second Priority Claims held (or purported to be held) by or on behalf of any Second Priority Secured Party in the Common Collateral, as the case may be; provided, however, that nothing in this Agreement shall be construed to prevent or impair the rights of any First Lien Agent or any Senior Lender to enforce this Agreement (including the priority of the Liens securing the Senior Lender Claims as provided in Section2.1) or any of the Senior Lender Documents."
"(a) So long as the Discharge of Senior Lender Claims has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Borrower or any other Grantor, (i)no Second Priority Agent or any Second Priority Secured Party will (x)exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Common Collateral in respect of any applicable Second Priority Claims, or exercise any right under any lockbox agreement, control agreement, landlord waiver or bailees letter or similar agreement or arrangement, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) with respect to any Common Collateral, (y)contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by any First Lien Agent or any Senior Lender in respect of the Senior Lender Claims, the exercise of any right by any First Lien Agent or any Senior Lender (or any agent or sub-agent on their behalf) in respect of the Senior Lender Claims under any lockbox agreement, control agreement, management agreement, lease, landlord waiver or bailees letter or similar agreement or arrangement to which any Second Priority Agent or any Second Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender Claims or (z)object to the forbearance by the Senior Lenders from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of Senior Lender Claims and (ii)except as otherwise provided herein, each First Lien Agent and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral and to direct the time, method, and place for exercising such right or remedy or conducting any proceeding with respect thereto, without any consultation with or the consent of any Second Priority Agent or any Second Priority Secured Party; provided, however, that (A)any Second Priority Agent and the Second"
"successors and permitted assigns), for the benefit of the secured parties referred to below, pursuant to the Collateral Agreement dated as of October6, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified, refinanced or replaced from time to time), among the [Borrower], the other Pledgors referred to therein and Credit Suisse AG, Cayman Islands Branch, as collateral agent for the benefit of the secured parties referred to therein and other Senior Collateral Documents (as defined in the Second Lien Intercreditor Agreement (defined below)) and to the liens and security interests granted to any Other First Priority Lien Obligations Agent pursuant to any Other First Priority Lien Obligations Security Document (as amended, restated, amended and restated, supplemented or otherwise modified, refinanced or replaced from time to time), and (ii)the exercise of any right or remedy by the [insert the relevant Second Priority Agent] hereunder is subject to the limitations and provisions of the Second Lien Intercreditor Agreement dated as of [] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Second Lien Intercreditor Agreement), by and among Credit Suisse AG, Cayman Islands Branch in its capacity as Credit Agreement Agent, [] in its capacity as Initial Second Priority Agent and each other party thereto from time to time. In the event of any conflict between the terms of the Second Lien Intercreditor Agreement and the terms of this agreement, the terms of the Second Lien Intercreditor Agreement shall govern."
"Bankruptcy Law (as adequate protection or otherwise). Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding, (i)if the Senior Lenders (or any subset thereof) are granted adequate protection in the form of additional collateral in connection with any DIP Financing or use of cash collateral under Section363 or Section364 of the Bankruptcy Code or any similar law, then each Second Priority Agent, on behalf of itself and any applicable Second Priority Secured Party, (A)may seek or request adequate protection in the form of a replacement Lien on such additional collateral, which Lien is subordinated to the Liens securing the Senior Lender Claims and such DIP Financing (and all Obligations relating thereto) on the same basis as the other Liens securing the Second Priority Claims are so subordinated to the Liens securing Senior Lender Claims under this Agreement and (B)agrees that it will not seek or request, and will not accept, adequate protection in any other form, and (ii)in the event any Second Priority Agent, on behalf of itself or any applicable Second Priority Secured Party, seeks or requests adequate protection and such adequate protection is granted in the form of additional collateral, then such Second Priority Agent, on behalf of itself or each such Second Priority Secured Party, agrees that the First Lien Agent shall also be granted a senior Lien on such additional collateral as security for the applicable Senior Lender Claims and any such DIP Financing and that any Lien on such additional collateral securing the Second Priority Claims shall be subordinated to the Liens on such collateral securing the Senior Lender Claims and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to the Senior Lenders as adequate protection on the same basis as the other Liens securing the Second Priority Claims are so subordinated to such Liens securing Senior Lender Claims under this Agreement."
"(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Lender Claims or Second Priority Claims, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Credit Agreement or any other Senior Lender Document or of the terms of the Initial Second Priority Agreement or any other Second Priority Document;"
"This Agreement is supplemental to that certain Second Lien Intercreditor Agreement, dated as of [__], 20[__] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Second Lien Intercreditor Agreement), by and among the parties (other than the New Agent) referred to above. This Agreement has been entered into to record the accession of the New Agent as an Other First Priority Lien Obligations Agent under the Second Lien Intercreditor Agreement."
"(d) Severability. Any provision of this Release that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction."
"J. In connection with the Landlord Financing Agreement, Landlord granted a Fee Mortgage (as defined in the CPLV Lease) in respect of Landlords interest in the Leased Property (as defined in the CPLV Lease) and the other Property (as defined therein) (collectively, the Landlord Financing Collateral) to the Landlord Financing Lender to secure Landlords obligations under the Landlord Financing Agreement pursuant to that certain Fee and Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Landlord Financing Fee Mortgage) by Landlord in favor of the Landlord Financing Lender;"
"(c) otherwise enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to the CPLV Lease Collateral (or any portion thereof) or any Related Property (or any portion thereof) at law, in equity, or pursuant to the CPLV Lease Documents or Tenant Financing Documents (including the commencement of applicable legal proceedings or other actions with respect to all or any portion of the CPLV Lease Collateral or any Related Property to facilitate the actions described in the preceding clauses); or"
"Lien means, with respect to any asset, (a)any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset and (b)the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien (unless in either case, a Lien is otherwise granted thereunder)."
"Tenant Financing Collateral Documents means the Credit Agreement Collateral Documents, the Security Documents or Collateral Documents (as defined in the applicable Tenant Financing Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Tenant Financing Obligations or pursuant to which any such Lien is perfected and shall also include any other intercreditor agreement among Tenant Financing Collateral Agents."
"Financing Lender as if it had been made by Landlord without subjecting itself to any liability for doing so) and (iii)Landlord Financing Lender or any other Person who acquires any portion of Landlords interest in the Leased Property in a foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure or any successor owner of the Leased Property shall, subject to the terms of the Landlord Financing SNDA, be bound by all obligations of Landlord hereunder and the other terms and conditions hereof applicable to Landlord and the terms and conditions of the CPLV Lease (and, concurrently with such acquisition, Landlord Financing Lender shall, or shall cause such other Person to, become party to this Agreement as Landlord by executing a joinder hereto in form and substance reasonably satisfactory to the Tenant Financing Collateral Agents) (for the avoidance of doubt, the obligations under this clause (iii)shall be applicable regardless of whether Landlord Financing Lender sends the notice referred to in clause (ii)above). Notwithstanding anything to the contrary herein or in any Landlord Financing Document, except as specifically set forth in the Trademark Security Agreement and Sections 3(k), 6 and 7 of the Landlord Financing SNDA, any Enforcement Action or other action by, or on behalf of or for the benefit of, Landlord Financing Lender with respect to the CPLV Lease Collateral shall be subject to the terms and conditions of this Agreement and the CPLV Lease that would be applicable to such Enforcement Action or other action if it was taken by Landlord."
"(f) Nothing in this Agreement shall prohibit the receipt by any Landlord Financing Lender of the required payments of principal, interest and other amounts owed in respect of the Landlord Financing Obligations in accordance with the Landlord Financing Documents so long as such receipt is not the direct or indirect result of the exercise by any Landlord Financing Lender of rights or remedies as a secured creditor with respect to the CPLV Lease Collateral (including set off and recoupment) in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien on the CPLV Lease Collateral held by any of them or as a result of any other violation by any Landlord Financing Lender of the terms of this Agreement."
"Landlord shall, in the following order, (x)unless a Discharge of Tenant Financing Obligations has already occurred, deliver any remaining proceeds of CPLV Lease Collateral held by it to the Designated Tenant Financing Collateral Agent to be applied by the Tenant Financing Collateral Agents to the Tenant Financing Obligations in such order as specified in the Tenant Financing Documents until a Discharge of Tenant Financing Obligations and (y)if a Discharge of Tenant Financing Obligations has already occurred, deliver such proceeds of CPLV Lease Collateral to Tenant, its successors or assigns from time to time, or to whomever may be lawfully entitled to receive the same."
"6.2 Finance and Sale Issues. Prior to the occurrence of the CPLV Lease Exercise Conditions, if Tenant shall be subject to any Insolvency or Liquidation Proceeding and any Tenant Financing Collateral Agent shall desire to permit the use of Cash Collateral (as such term is defined in Section363(a) of the Bankruptcy Code) on which such Tenant Financing Collateral Agent or any other creditor has a Lien, or to permit Tenant to obtain financing, whether from the Tenant Financing Claimholders or any other Person under Section364 of the Bankruptcy Code or any similar Bankruptcy Law (DIP Financing), in each case in a manner not inconsistent with the terms of this Agreement, then Landlord will not object to such Cash Collateral use or DIP Financing (including any proposed orders for such Cash Collateral use and/or DIP Financing which are acceptable to such Tenant Financing Collateral Agent), so long as Tenant Financing Collateral Agent is a Permitted Leasehold Mortgagee and so long as (a)any Liens on the CPLV Lease Collateral securing such DIP Financing are subordinated to the Liens on the CPLV Lease Collateral securing the CPLV Lease Obligations in accordance with the terms of this Agreement and (b)no amounts owed by Tenant under such DIP Financing take priority over any claims under the CPLV Lease that may arise prior to any rejection of the CPLV Lease. Prior to the occurrence of the CPLV Lease Exercise Conditions, Landlord shall not provide any DIP Financing to Tenant without the prior written consent of the Tenant Financing Collateral Agents so long as Tenant Financing Collateral Agent is a Permitted Leasehold Mortgagee. Landlord agrees that, unless the CPLV Lease Exercise Conditions have occurred, it will (including, without limitation, in an Insolvency or Liquidation Proceeding)(i) not seek consultation rights in connection with, and will not object to or oppose, any sale, liquidation or other disposition of any assets of Tenant, including the CPLV Lease Collateral, that is supported by the Tenant Financing Collateral Agents so long as Tenant Financing Collateral Agent is a Permitted Leasehold Mortgagee and (ii)be deemed to have consented to such sale, liquidation or other disposition, provided that (A)such sale, liquidation or other disposition shall be made pursuant to a Tenant Financing Permitted Action to the same Person who acquires Tenants Leasehold Estate (as defined in the CPLV Lease) in accordance with the CPLV Lease and the Person so acquiring the CPLV Lease Collateral shall expressly acknowledge in writing that it is acquiring the CPLV Lease Collateral subject to the continuing first priority lien of Landlord, and (B)notwithstanding any such sale, liquidation or other disposition, the CPLV Lease Collateral shall remain subject to the continuing first priority lien of Landlord. Landlord further agrees that, unless the CPLV Lease Exercise Conditions have occurred, it will not directly or indirectly oppose or impede any such sale, liquidation or other disposition, including orders to retain professionals or set bid procedures in connection with such sale, liquidation or disposition if the Tenant Financing Collateral Agents are each a Permitted Leasehold Mortgagee and have consented to (i)such retention of professionals and bid procedures in connection with such sale, liquidation or disposition of such assets and (ii)the sale, liquidation or disposition of such assets, in which event Landlord will be deemed to have consented to the sale or disposition of CPLV Lease Collateral, and provided that (A)such sale, liquidation or other disposition shall be made pursuant to a Tenant Financing Permitted Action to the same Person who acquires Tenants Leasehold Estate (as defined in the CPLV Lease) in accordance with the CPLV Lease and (B)notwithstanding any such sale, liquidation or other disposition, the CPLV Lease Collateral shall remain subject to the continuing first priority lien of Landlord and the Person so acquiring the CPLV Lease Collateral shall expressly acknowledge in writing that it is acquiring the CPLV Lease Collateral subject to the lien of Landlord."
"(b) Landlord shall not oppose or seek to challenge any claim by any Tenant Financing Collateral Agent or any other Tenant Financing Claimholder for allowance in any Insolvency or Liquidation Proceeding of Tenant Financing Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of the Tenant Financing Collateral Agents, on behalf of the Tenant Financing Claimholders, on the Tenant Financing Collateral (after taking into account the amount of the CPLV Lease Obligations and the provisions of this Agreement)."
"9.10 Further Assurances. Landlord, each Tenant Financing Collateral Agent, on behalf of itself and each other Tenant Financing Claimholder under the Tenant Financing Documents represented by it, and Tenant, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as Landlord or any Tenant Financing Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement."
"9.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall inure to the benefit of each of Landlord, Tenant, Landlord Financing Lender and the Tenant Financing Claimholders and their respective successors and assigns from time to time; provided that, with respect to the rights of Landlord expressly referred to in Section2.1(c)(ii) of this Agreement, Landlord Financing Lender shall be an express and intended third party beneficiary of such rights of Landlord under such Section2.1(c)(ii). Other than as set forth in Section9.3 and Section9.6, none of Tenant, Lease Guarantor, Manager or any other creditor shall have any rights hereunder and none of Tenant, Lease Guarantor, Manager or any other creditor may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the obligations of Tenant, which are absolute and unconditional, to pay the CPLV Lease Obligations and perform obligations under the CPLV Lease and the Tenant Financing Obligations as and when the same shall become due and payable in accordance with their terms."
"1\. Accession to the Intercreditor Agreement. In accordance with Section9.6 of the Intercreditor Agreement, the New Collateral Agent by its signatures below becomes a Tenant Financing Collateral Agent under, and the related Additional Tenant Financing Claimholders represented by it become subject to and bound by, the Intercreditor Agreement with the same force and effect as if the New Collateral Agent had originally been named therein as a Tenant Financing Collateral Agent, and the New Collateral Agent, on behalf of itself and each other Additional Tenant Financing Claimholder represented by it, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Tenant Financing Collateral Agent and to the Additional Tenant Financing Claimholders represented by it as Tenant Financing Claimholders. Each reference to a Tenant Financing Collateral Agent in the Intercreditor Agreement shall be deemed to include the New Collateral Agent and each reference to Tenant Financing Claimholders shall include the Additional Tenant Financing Claimholders represented by such New Collateral Agent. The Intercreditor Agreement is hereby incorporated herein by reference."
"[FORM OF] DEBT DESIGNATION NO.[] (this Designation) dated as of [], 20[] with respect to the INTERCREDITOR AGREEMENT dated as of [], 2017 (the Intercreditor Agreement), among [INSERT NAME], Landlord, [], as Credit Agreement Collateral Agent, and the additional Tenant Financing Collateral Agents from time to time a party thereto, and [TENANT] (Tenant)."
"Additional Tenant Financing Claimholders means, with respect to any Series of Additional Tenant Financing Debt, the holders of such Indebtedness, the Tenant Financing Collateral Agent with respect thereto, any trustee or agent therefor under any related Additional Tenant Financing Loan Documents and the beneficiaries of each indemnification obligation undertaken by the Tenant under any related Additional Tenant Financing Loan Documents and the holders of any other Additional Tenant Financing Obligations secured by the Tenant Financing Collateral Documents for such Series of Additional Tenant Financing Debt."
"Credit Agreement Collateral Documents means the Security Documents (as defined in the Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is (or is purported to be) granted to secure any Credit Agreement Obligations or pursuant to which any such Lien is (or is purported to be) perfected."
"(d) effectuate or cause a sale, lease, exchange, transfer or other disposition of Non-CPLV Lease Collateral (or any portion thereof) or any Related Property (or any portion thereof) by Tenant after the occurrence and during the continuation of an event of default under the Non-CPLV Lease Documents or the Tenant Financing Documents;"
"Landlord Financing Documents means the Landlord Financing Agreements, the Landlord Financing Collateral Agreements, any and all Landlord Financing Fee Mortgage and each of the other agreements, documents and instruments entered into for the purpose of evidencing, guaranteeing, governing, securing, creating or perfecting the Landlord Financing Obligations, and any other document or instrument executed or delivered at any time in connection with any Landlord Financing Obligations, as each may be amended, restated, amended and restated, supplemented or replaced or otherwise modified from time to time in accordance with the provisions of this Agreement."
"Non-CPLV Lease Exercise Conditions means that either (i)there are no Permitted Leasehold Mortgagees (as defined in the Non-CPLV Lease) or (ii)Landlord has delivered to each Permitted Leasehold Mortgagee for which notice to Landlord has been properly provided pursuant to Section17.1(b)(i) of the Non-CPLV Lease, a copy of the applicable notice of default pursuant to Section17.1(c) of the Non-CPLV Lease and the Right to Terminate Notice pursuant to Section17.1(d) of the Non-CPLV Lease, and (solely for purposes of this clause (ii)) either of the following occurred:"
"(b) Both (1)the Non-CPLV Lease is rejected in any bankruptcy, insolvency or dissolution proceeding or is terminated by Landlord following a Tenant Event of Default (as defined in the Non-CPLV Lease) and (2)no Permitted Leasehold Mortgagee has acted in accordance with Section17.1(f) of the Non-CPLV Lease to obtain a New Lease (as defined in the Non-CPLV Lease) prior to the expiration of the period described therein."
"otherwise exercising rights and remedies with respect to the Non-CPLV Lease Collateral, the Tenant Financing Collateral Agents and the other Tenant Financing Claimholders may enforce the provisions of the Tenant Financing Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation with Landlord, subject in all respects to the provisions of this Agreement."
"(5) vote on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments and motions, in each case, in a manner that is not prohibited by, or inconsistent with, this Agreement, with respect to the Non-CPLV Lease Obligations and the Non-CPLV Lease Collateral; provided that no filing of any claim or vote, or pleading related to such claim or vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document, agreement or proposal similar to the foregoing by Landlord may be inconsistent with the provisions of this Agreement;"
"and it is hereby acknowledged and agreed that Landlord may apply any proceeds of any exercise of rights and remedies with respect to the Non-CPLV Lease Collateral received by it against the Non-CPLV Lease Obligations regardless of the lien priorities set forth herein, and the Tenant Financing Claimholders hereby waive any right to such proceeds."
"(f) Nothing in this Agreement shall prohibit the receipt by any Landlord Financing Lender of the required payments of principal, interest and other amounts owed in respect of the Landlord Financing Obligations in accordance with the Landlord Financing Documents so long as such receipt is not the direct or indirect result of the exercise by any Landlord Financing Lender of rights or remedies as a secured creditor with respect to the Non-CPLV Lease Collateral (including set off and recoupment) in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien on the Non-CPLV Lease Collateral held by any of them or as a result of any other violation by any Landlord Financing Lender of the terms of this Agreement."
"(d) Upon the Discharge of Non-CPLV Lease Obligations, Landlord or the applicable Landlord Financing Lender (provided that such Landlord Financing Lender shall have received a written instruction from Tenant and Landlord instructing it to do so), as applicable, shall, deliver the remaining Pledged Collateral in its possession (if any) together with any necessary endorsements (which endorsement shall be without recourse and without any representation or warranty), in the following order: (x)if a Discharge of Tenant Financing Obligations has not already occurred, to the Designated Tenant Financing Collateral Agent and (y)if a Discharge of Tenant Financing Obligations has already occurred, to Tenant or to whomever may be lawfully"
"7.2 No Warranties or Liability. Landlord acknowledges and agrees that no Tenant Financing Collateral Agent or other Tenant Financing Claimholder has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Tenant Financing Documents, the ownership of any Non-CPLV Lease Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided herein, the Tenant Financing Claimholders will be entitled to manage and supervise their respective loans and extensions of credit under the Tenant Financing Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Each Tenant Financing Collateral Agent, on behalf of itself and each other Tenant Financing Claimholder, acknowledges and agrees that Landlord has not made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Non-CPLV Lease Documents, the ownership of any Non-CPLV Lease Collateral or the perfection or priority of any Liens thereon."
"9.1 Integration. This Agreement, the Non-CPLV Lease Documents and the Tenant Financing Documents represent the entire agreement of Tenant, Landlord, the Tenant Financing Claimholders and, as between the Landlord and the Landlord Financing Lenders, the Landlord Financing Documents, with respect to the Non- CPLV Lease Collateral, and supersede any and all previous agreements and understandings, oral or written, relating to the Non-CPLV Lease Collateral. There are no promises, undertakings, representations or warranties by Tenant, Landlord, the Tenant Financing Claimholders or Landlord Financing Lender relative to the Non-CPLV Lease Collateral not expressly set forth or referred to herein or therein. In the event of any conflict between the provisions of this Agreement and the provisions of the Non-CPLV Lease Documents or the Tenant Financing Documents with respect to the Non-CPLV Lease Collateral and Related Property, the provisions of this Agreement shall govern and control; provided that the foregoing shall not be construed to limit the relative rights and obligations as among the Tenant Financing Claimholders, which may be governed by separate intercreditor arrangements among them and provided further that notwithstanding the foregoing nothing in this agreement shall be construed to permit Landlord to exercise any rights or remedies against Tenant in contravention of the first sentence of Section6.3(d) of the Non-CPLV Lease. The exercise of any right or remedy by the Landlord Note Lender hereunder is subject to the limitations of the Second Lien Intercreditor Agreement, dated as of October6, 2017, by and among Wilmington Trust, National Association in its capacity as First Lien Agent, UMB Bank, National Association, as Initial Other First Priority Lien Obligations Agent, and UMB Bank, National Association, as Trustee."
"(e) consents to service of process in any such proceeding in any such court by registered or certified mail, return receipt requested, to the applicable party at its address provided in accordance with Section9.9 (and agrees that nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law);"
"9.9 Notices. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by telefacsimile, electronic mail or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or electronic mail, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each partys name on the signature pages hereto or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties. All notices to the Tenant Financing Claimholders permitted or required under this Agreement shall be sent to the applicable Tenant Financing Collateral Agent(s)."
"(ii) provided Executive and his eligible dependents timely and properly elect to continue health care coverage under COBRA, continued participation by Executive and Executives eligible dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for fifteen (15) months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section105(h)of the Code, or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for fifteen (15) months, which amount shall be paid in a lump sum at the same time payments under Section5(f)(i)commence and is intended to assist Executive with costs of health coverage, which Executive may (but is not required to) obtain through an election to continue health care coverage under COBRA; and"
"(g) Payment to Executive of any Severance Benefits or Change in Control Severance Benefits, as applicable, shall be conditioned on Executives compliance with the requirements of Section8 hereof and Executives execution of a general release in favor of the Company and its affiliates in substantially the form attached hereto as ExhibitA (the Release) and the lapse of any revocation period specified therein with the Release not having been revoked. The Release shall be provided to Executive within three (3)days of Executives termination of employment. Executive will forfeit all rights to the Severance Benefits and the Change in Control Severance Benefits, as applicable, unless, within sixty (60) days of Executives termination of employment, Executive executes and delivers the Release to the Company and such Release has become irrevocable by virtue of the expiration of the revocation period specified therein without the Release having been revoked (the first such date, the Release Effective Date). The Companys obligation to pay the Severance Benefits or the Change in Control Severance Benefits, as applicable, is subject to the occurrence of the Release Effective Date, and if the Release Effective Date does not occur, then the Company shall have no obligation to pay such Severance Benefits or Change in Control Severance Benefits, as applicable. Notwithstanding anything contained herein to the contrary, in the event that the period during which Executive may review and revoke the Release begins in one calendar year and ends in the following calendar year, any severance payments hereunder that constitute non-qualified deferred compensation subject to Section409A of the Code shall be paid to Executive no earlier than January1 of the second calendar year."
"(a) Non-Competition. So long as Executive is employed by the Company under this Agreement and for the 12-month period following the termination of Executives employment with the Company for any reason (the Restricted Period), Executive agrees that Executive will not, directly or indirectly, without the prior written consent of the Company, engage in Competition with the Company or any of its affiliates (collectively, the Employer). Competition means participating, directly or indirectly, as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, consultant or in any other capacity whatsoever in any business or venture that competes with any business that the Employer is engaged in as of the date of Executives termination of employment with the Company or is actively planning to engage in as of the date of Executives termination of employment with the Company. Notwithstanding the foregoing, after Executives termination of employment, employment by or consultation for a publicly traded company that derives less than five percent (5%) of its net revenues from activities that compete with business that the Employer engages in, shall not constitute Competition so long as Executive does not provide employment or consulting services to the business segment of such publicly traded company that engages in such competitive activities. Executive is entering into this covenant not to compete in consideration of the agreements of the Company in this Agreement, including but not limited to, the agreement of the Company to provide the severance and other benefits to Executive upon a termination of employment pursuant to Sections 6(e)and (f)hereof, as applicable."
"disclosure and cooperates at the Companys cost with the Company in seeking a protective order or other appropriate protection of such information). The Company and Executive acknowledge that, notwithstanding anything to the contrary contained in this Agreement, pursuant to 18 USC  1833(b), an individual may not be held liable under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i)made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii)in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Company and Executive further acknowledge that an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order."
"2. Title, Duties and Responsibilities. While Executive is employed by the Company, Executive will serve as the Chief Commercial Officer of OptiNose,Inc. and will report to the President and the Chief Executive Officer of OptiNose,Inc. Executive will have such duties and responsibilities that are commensurate with Executives position and such other duties and responsibilities as are from time to time assigned to Executive by the President or the Chief Executive Officer or the Board of Directors of the OptiNose,Inc. (the Board). While Executive is employed by the Company, Executive will devote Executives full business time, energy and skill to the performance of Executives duties and responsibilities hereunder. Executive will not be permitted to engage in other activities that interfere with Executives performance of his duties under this Agreement, conflict with the business of the Company or violate any provisions of Section8 herein. Executive shall, if requested by the Board, also serve as an officer or director of any affiliate of the Company for no additional compensation. Executives place of employment will be the Companys offices in Yardley, Pennsylvania."
"Company or affiliate policy or the restrictive covenants set forth in Section8 of this Agreement or any other applicable restrictive covenants between Executive and the Company or any of its affiliates), (ii)Executives failure to follow the reasonable instructions of the President, the Chief Executive Officer or the Board (other than as a result of total or partial incapacity due to physical or mental illness), which failure, if curable, is not cured within 30 days after notice to Executive specifying in reasonable detail the nature of such breach, or, if cured, recurs within 90 business days, (iii)Executives gross negligence, willful misconduct, fraud, insubordination, acts of dishonesty or conflict of interest relating to the Company or any of its affiliates, or (iv)Executives commission of any misdemeanor which has a material impact on the affairs, business or reputation of the Company or any of its affiliates or Executives indictment for, or plea of nolo contendere to, a crime constituting a felony under the laws of the United States or any state thereof. Upon a termination of Executives employment for Cause, all of Executives rights to compensation and benefits under Sections 3, 4 and 5 of this Agreement or otherwise shall immediately terminate, except that Executive shall be entitled to the Accrued Benefits."
"(i) an amount equal to nine (9)months of Executives Base Salary at the rate in effect on the date of termination, payable in substantially equal installments in accordance with the Companys normal payroll practices over the nine (9)month period following Executives termination date, commencing on the first payroll date that occurs on or after the Release Effective Date (as defined below), provided that the initial payment will include a catch-up payment to cover the period between Executives termination date and the date of such first payment and the remaining amounts shall be paid over the remainder of such nine (9)month period;"
"(ii) In addition, the Company Inventions will be deemed work made for hire, as such term is defined under the copyright law of the United States, on behalf of the Employer and Executive agrees that the Company (or its designee) will be the sole owner of the Company Inventions, and all underlying rights therein, in all media now known or hereinafter devised, throughout the universe and in perpetuity without any further obligations or compensation to Executive. If the Company Inventions, or any portion thereof, are deemed not to be work made for hire, Executive hereby irrevocably conveys, transfers, assigns and delivers to the Company (or its designee), all rights, titles and interests, in all media now known or hereinafter devised, throughout the universe and in perpetuity, in and to the Company Inventions, including without limitation: (a)all of Executives rights, titles and interests in and to any underlying intellectual property (and all renewals, revivals and extensions thereof) related to the Company Inventions; (b)all rights of any kind or any nature now or hereafter recognized, including without limitation, the unrestricted right to make modifications, adaptations and revisions to the Company Inventions, to exploit and allow others to exploit the Company Inventions; and (c)all rights to sue at law or in equity for any infringement, or other unauthorized use or conduct in derogation of the Company Inventions, known or unknown, prior to the date hereof, including without limitation the right to receive all proceeds and damages therefrom. In addition, Executive hereby waives any so-called moral rights with respect to the Company Inventions. Executive hereby waives any and all currently existing and future monetary rights in and to the Inventions and all patents and other intellectual property rights that may issue thereon, including, without limitation, any rights that would otherwise accrue to Executives benefit by virtue of Executive being an employee of or other service provider to the Employer."
"(iii) To the extent that Executive is unable to assign any of Executives right, title or interest in any Company Invention under applicable law, for any such Company Invention and the underlying intellectual property rights, Executive hereby grants to the Company (or its designee) an exclusive, irrevocable, perpetual, transferable, worldwide, fully paid license to such Company Invention and the underlying intellectual property, with the right to sublicense, use, modify, create derivative works and otherwise fully exploit such Company Invention and the underlying intellectual property, to assign this license and to exercise all rights and incidents of ownership of the Company Invention."
"(a) The payments and benefits under this Agreement are intended to comply with or be exempt from Section409A of the Code, and the regulations and guidance promulgated thereunder (collectively, Section409A) and this Agreement shall be interpreted and construed in a manner intended to comply therewith. For purposes of this Agreement, Executive will be considered to have experienced a termination of employment only if Executive has a separation from service with the Company and all of its controlled group members within the meaning of Section409A. Whether Executive has a separation from service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section409A."
"a. In consideration of the amounts to be paid by the Company pursuant to the Employment Agreement entered into on [Date], 2017, by and between the Company and Executive (the Employment Agreement), Executive, on behalf of himself and his heirs, executors, devisees, successors and assigns, knowingly and voluntarily releases, remises, and forever discharges the Company and its parents, subsidiaries or affiliates, together with each of their current and former principals, officers, directors, shareholders, agents, representatives and employees, and each of their heirs, executors, successors and assigns (collectively, the Releasees), from any and all debts, demands, actions, causes of action, accounts, covenants, contracts, agreements, claims, damages, omissions, promises, and any and all claims and liabilities whatsoever, of every name and nature, known or unknown, suspected or unsuspected, both in law and equity (Claims), which Executive ever had, now has, or may hereafter claim to have against the Releasees by reason of any matter or cause whatsoever arising from the beginning of time to the time he signs this Agreement (the General Release). This General Release of Claims shall apply to any Claim of any type, including, without limitation, any and all Claims of any type that Executive may have arising under the common law, under the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Older Workers Benefit Protection Act, the Americans With Disabilities Act of 1967, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, the Sarbanes-Oxley Act of 2002, each as amended, the Fair Credit Reporting Act, the Fair Credit Reporting Act, 15 U.S.C.  1681, et seq., the Worker Adjustment and Retraining Notification Act, 29 U.S.C.  2101, et seq., the Equal Pay Act of 1963, claims for wrongful discharge in violation of public policy, claims under the Employment Discrimination Bureau (EDB)  Pennsylvania, the Pennsylvania Family Leave Act, the Pennsylvania Workers Compensation Act, the Pennsylvania State Wage and Hour Law, the Pennsylvania Law on Equal Pay, the Pennsylvania Political Activities of Employees Law, the Pennsylvania Lie Detector Testing Law, the Pennsylvania Tobacco Use Law, the Pennsylvania Genetic Testing Law, the State of Pennsylvania Labor Relations Act, the Pennsylvania Human Rights Law, and the Pennsylvania Labor Law, claims for discrimination in violation of the Pennsylvania Human Relations Act, each as amended, and any other federal, state or local statutes, regulations, ordinances or common law, or under any policy, agreement, contract, understanding or promise, written or oral, formal or informal, between any of the Releasees and Executive and shall further apply, without limitation, to any and all Claims in connection with, related to or arising out of Executives employment relationship, or the termination of his employment, with the Company."
"6. Entire Agreement. This Agreement, the Employment Agreement and the other agreements referred to in the Employment Agreement constitute the entire agreement and understanding of the parties with respect to the subject matter herein and supersedes all prior agreements, arrangements and understandings, written or oral, between the parties. Executive acknowledges and agrees that he is not relying on any representations or promises by any representative of the Company concerning the meaning of any aspect of this Agreement."
"5.3 Equity Compensation. On the Effective Date, subject to the terms of this Section 5.3, Executive shall receive options to purchase up to 50,000 shares of the Companys common stock, at an exercise price equal to the closing quote for the Companys common stock on October 1, 2017 (the Stock Options). The Stock Options shall be incentive stock options issued pursuant to the Companys 2013 Stock Option Plan (the Plan) and an award agreement to be issued thereunder. The Company and Executive hereby agree that the Stock Options granted under this Agreement shall replace the options to purchase common stock provided in the Previous Agreement, and that any options granted under the Previous Agreement shall be voluntarily forfeited by Executive as of the date hereof. The Stock Options shall be subject to the following vesting conditions:"
"(a) In the event that this Agreement is still in effect as of December 31, 2019, and the Companys net revenues for the fiscal year ending on December 31, 2019 equal or exceed $20,000,000, and net income before taxes for the fiscal year ending on December 31, 2019, adjusted to exclude the effect of the expense attributable to the Stock Options, equal or exceed $3,000,000 (together, the Vesting Conditions), the Stock Options will vest in full."
"(c) interfering with the relationship between the Company and any current or former employee, independent contractor, vendor, or supplier of the Company, including, without limitation, soliciting, enticing, inducing or attempting to induce or influence such current or former employee, independent contractor, vendor or supplier of the Company to terminate or alter his, her, or its relationship with the Company;"
"9.3 Both during or after the term of Executives employment by the Company, Executive agrees that Executive will not, except in the ordinary course of Executives employment with the Company, disclose any Confidential Information to any person, firm, business, company, corporation, association, or any other entity for any reason or purpose whatsoever. Executive also agrees that Executive will not make use of any Confidential Information for Executives own purposes or for the benefit of any person, firm, business, company, corporation, or any other entity (except the Company) under any circumstances during or after the term of Executives employment. Executive shall consider and treat as confidential all Confidential Information in any way relating to the Companys business and affairs, whether created by Executive or otherwise coming into Executive's possession before, during, or after the termination of Executives employment. Executive shall secure and protect the Confidential Information in a manner designed to prevent all access and uses thereof contrary to the terms of this Agreement. Executive further agrees that Executive shall use Executives best efforts to assist the Company in identifying and preventing any use or disclosure of the Confidential Information contrary to this Agreement."
"13.1 Executive acknowledges the success of the Companys business depends in large part on the protection of the Confidential Information and trade secrets. Executive acknowledges Executives access to the Confidential Information, coupled with the personal relationships and goodwill between the Company and its customers would enable Executive to compete unfairly against the Company;"
"15. Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon and assignable to, successors of the Company by way of merger, consolidation or sale. Executive may not assign or delegate to any third person Executives obligations under this Agreement. The rights and benefits of Executive under this Agreement are personal to him (or, in the event of Executives death or disability, Executives personal representative, heirs, or beneficiaries), and no such right or benefit shall be subject to voluntary or involuntary alienation, assignment or transfer."
"a. Executive, for Executive and for Executives affiliates, successors, heirs, subrogees, assigns, principals, agents, partners, employees, associates, attorneys, and representatives, voluntarily, knowingly, and intentionally releases and discharges the Company and each of its predecessors, successors, parents, subsidiaries, affiliates, and assigns and each of their respective officers, directors, principals, shareholders, board members, committee members, employees, agents, and attorneys from any and all claims, actions, liabilities, demands, rights, damages, costs, expenses, and attorneys fees (including, but not limited to, any claim of entitlement for attorneys fees under any contract, statute, or rule of law allowing a prevailing party or plaintiff to recover attorneys fees) of every kind and description from the beginning of time through the Effective Date (the Released Claims)."
"(a) General. While Executive is employed by the Company, Executive will be entitled to such benefits and fringes, if any, as are generally provided from time to time by the Company to its senior level executives, subject to the satisfaction of any eligibility requirements and any other terms and conditions of the applicable plans or policies."
"(e) Termination by the Company without Cause or by Executive for Good Reason. Except as provided in Section6(f)below, upon a termination of Executives employment by the Company without Cause or by Executive for Good Reason, Executive shall be entitled to receive the Accrued Benefits and, subject to Executives execution and non-revocation of the release described in Section6(g)and Executives compliance with Executives obligations under Section8, the following severance payments and benefits (collectively, the Severance Benefits):"
"(ii) provided Executive and his eligible dependents timely and properly elect to continue health care coverage under the Consolidated Omnibus Reconciliation Act of 1985 (COBRA), continued participation by Executive and Executives eligible dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for nine (9)months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section105(h)of the Internal Revenue Code of 1986, as amended (the Code), or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive an amount equal to the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for nine (9)months, which amount shall be paid in a lump sum at the same time payments under Section5(e)(i)commence and is intended to"
"Good Reason shall mean, without Executives prior written consent, (i)a material diminution in Executives position or duties, authority or responsibilities including, without limitation, Executive ceasing to be an executive officer (as defined under Rule3b-7 of the Securities Exchange Act of 1934, as amended (the Exchange Act)) of a company with a class of securities registered under Section12(b)of the Exchange Act; (ii)the assignment to Executive of any duties materially inconsistent with the duties and responsibilities of Chief Legal Officer and Corporate Secretary, (iii)a reduction by the Company in Executives then-current Base Salary or Executives then-current Target Annual Bonus unless the salaries and target annual bonuses for all other senior executive officers are correspondingly and proportionately reduced by not greater than 15% and such reduction continues for no more than 12 months; (iv)Executives relocation to offices of the Company that are more than fifty (50) miles from the Companys offices in Yardley, Pennsylvania; or (v)any action or inaction that constitutes a material breach of this Agreement by the Company. In order to invoke a termination for Good Reason, Executive must deliver a written notice of the grounds for such termination within thirty (30) days of the initial existence of the event giving rise to Good Reason and the Company shall have thirty (30) days to cure the circumstances. In order to terminate Executives employment, if at all, for Good Reason, Executive must terminate employment within sixty (60) days following the end of the cure period if the circumstances giving rise to Good Reason have not been cured."
"(f) Termination by the Company without Cause or by Executive for Good Reason Following a Change in Control. Upon a termination of Executives employment by the Company without Cause or by Executive for Good Reason, in each case within twelve (12) months after a Change in Control (as defined in the Companys 2010 Stock Incentive Plan, as amended and restated), Executive shall be entitled to receive the Accrued Benefits and, subject to Executives execution and non- revocation of the release described in Section6(g)and Executives compliance with Executives obligations under Section8, the following severance payments and benefits (collectively, the Change in Control Severance Benefits):"
"(f) Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section7. For purposes of making the calculations required by this Section7, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code."
"(e) As a result of the uncertainty in the application of Section280G of the Code at the time that the 280G Firm makes its determinations under this Section7, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the Overpayments), or that additional amounts should be paid or distributed to Executive (collectively, the Underpayments). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against Executive or the Company, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by"
"Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Section4999 of the Code or generate a refund of tax imposed under Section4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to Executive without interest."
"(f) Non-Disparagement. Executive agrees that Executive will not, nor will Executive induce others to, Disparage the Employer or any of their past or present officers, directors, employees or products. Similarly, the directors and senior executives of the Employer will not, nor will they induce others to, Disparage Executive. Disparage will mean making comments or statements to the press, the Employers employees or any individual or entity with"
"16. Entire Agreement; Amendments. This Agreement and the agreements referenced herein contain the entire agreement of the parties relating to the subject matter hereof, and supersede in their entirety any and all prior and/or contemporaneous agreements, understandings or representations relating to the subject matter hereof, whether written or oral, including without limitation the Existing Agreement. No amendments, alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties hereto."
"Capital Expenditures: The sum of (i)all expenditures actually paid by or on behalf of Tenant, on a consolidated basis, to the extent capitalized in accordance with GAAP and in a manner consistent with Tenants annual Financial Statements, plus (ii)all Services Co Capital Expenditures; provided that the foregoing shall exclude capitalized interest."
"CPI Increase: The greater of (a)zero and (b)a fraction, expressed as a decimal, determined as of each Escalator Adjustment Date, (x)the numerator of which shall be the difference between (i)the average CPI for the three (3)most recent calendar months (the Prior Months) ending prior to such Escalator Adjustment Date (for which the CPI has been published as of such Escalator Adjustment Date) and (ii)the average CPI for the three (3)corresponding calendar months occurring one (1)year prior to the Prior Months (such average CPI, the Beginning CPI), and (y)the denominator of which shall be the Beginning CPI."
"Extraordinary Items: Gains or losses related to events and transactions that both: (a)possess ahigh degree of abnormality and are of a type clearly unrelated to, or only incidentally related to, the ordinary and typical activities of the applicable entity,taking into account the environment in which such entity operates; and (b)are of a type that would not reasonably be expected to recur in the foreseeable future, taking into account the environment in which the applicableentity operates."
"Fair Market Ownership Value: The fair market purchase price of the Leased Property, Facility or any applicable part thereof, as the context requires, as of the estimated transfer date, in its then-condition, that a willing purchaser would pay to a willing seller for Cash on arms-length terms (assuming (1)neither such purchaser nor seller is under any compulsion to sell or purchase and that both have reasonable knowledge of all relevant facts, are acting prudently and knowledgeably in a competitive and open market, and assuming price is not affected by undue stimulus and (2)neither party is paying any broker a commission in connection with the transaction), taking into account the provisions of Section34.1(f) if applicable, and otherwise taking all then-relevant factors into account (whether favorable to one, both or neither Party) and subject to the further factors, as applicable, that are set forth in the definition of Fair Market Rental Value herein below as applicable, either (i)as agreed in writing by Landlord and Tenant, or (ii)as determined in accordance with the procedure specified in Section34.1 of this Lease."
"Fee Mortgage: Any mortgage, pledge agreement, security agreement, assignment of leases and rents, fixture filing or similar document creating or evidencing a lien on Landlords interest in the Leased Property or any portion thereof (or an indirect interest therein, including without limitation, a lien on direct or indirect interests in Landlord) in accordance with the provisions of Article XXXI hereof."
"Ground Leases: Collectively, those certain leases with respect to real property that is a portion of the Leased Property, pursuant to which Landlord is a tenant and which leases are in existence as of the Commencement Date and listed on Schedule 2 hereto or, subject to Section7.3, subsequently added to the Leased Property in accordance with the provisions of this Lease. Each of the Ground Leases is referred to individually herein as a Ground Lease."
"Impositions: Collectively, all taxes, including ad valorem, sales, use, single business, gross receipts, transaction privilege, rent or similar taxes; assessments, including assessments for public improvements or benefits, whether or not commenced or completed prior to the Commencement Date and whether or not to be completed within the Term; ground rents pursuant to Ground Leases (in effect as of the Commencement Date or otherwise entered into in accordance with this Lease); water, sewer and other utility levies and charges; excise tax levies; license, permit, inspection, authorization and similar fees; bonds and all other governmental charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character to the extent in respect of the Leased Property or any portion thereof and/or the Rent and Additional Charges (but not, for the avoidance of doubt, in respect of Landlords income (as specified in clause (a)below)) and all interest and penalties thereon"
"Intercreditor Agreement: That certain Intercreditor Agreement, dated as of the date hereof, by and among Landlord, Credit Suisse AG, Cayman Islands Branch, as Credit Agreement Collateral Agent (as defined therein), each additional Tenant Financing Collateral Agent (as defined therein) that becomes a party thereto pursuant to Section9.6 thereof, Tenant and JPMorgan Chase Bank, National Association, Barclays Bank PLC, Goldman Sachs Mortgage Company and Morgan Stanley Bank, N.A., collectively as lender under the Landlord Financing Agreement (as defined therein)."
"(a) Either (1)no Permitted Leasehold Mortgagee has satisfied the requirements in Section17.1(d) within the thirty (30)or ninety (90)day periods, as applicable, described therein, or (2)a Permitted Leasehold Mortgagee satisfied the requirements in Section17.1(d) prior to the expiration of the applicable period, but did not cure a default that is required to be so cured by such Permitted Leasehold Mortgagee and such Permitted Leasehold Mortgagee discontinued efforts to cure the applicable default(s) thereby failing to satisfy the conditions for extending the termination date as provided in Section17.1(e) or otherwise failed at any time to satisfy the conditions for extending the termination date as provided in Section17.1(e)(i); or"
"(a) With respect to Tenant, (i)a communication (whether oral or in writing) by or from any Gaming Authority to either Tenant or Manager or any of their respective Affiliates (each, a Tenant Party) or to a Landlord Party (as defined below) or other action by any Gaming Authority that indicates that such Gaming Authority may find that the association of a Tenant Party with Landlord is likely to (A)result in a disciplinary action relating to, or the loss of, inability to reinstate or failure to obtain, any Gaming License or any other rights or entitlements held or required to be held by Landlord or any of its Affiliates (each, a Landlord Party) under any Gaming Regulations or (B)violate any Gaming Regulations to which a Landlord Party is subject; or (ii)a Tenant Party is required to be licensed, registered, qualified or found suitable under any Gaming Regulations, and such Tenant Party does not remain so licensed, registered, qualified or found suitable or, after becoming so licensed, registered, qualified or found suitable, fails to remain so, and, solely for purposes of determining whether a Tenant Event of Default has occurred under Section16.1(l), the same causes cessation of Gaming activity at the Facility and would reasonably be expected to have a material adverse effect on the Facility; and"
"(5) Notwithstanding the foregoing, the adjustments provided for in clauses (a)(3) and (a)(4) above shall not be implemented in the calculation of Net Revenue with respect to any transaction involving any space for which aggregate Gaming Revenues, Retail Sales and Promotional Allowances do not exceed Ten Million and No/100 Dollars ($10,000,000.00) in each transaction and Fifteen Million and No/100 Dollars ($15,000,000.00) in the aggregate per Lease Year."
"as a result of its ownership of publicly-traded shares in any Person), or (B)entity that owns, directly or indirectly (but excluding any ownership of publicly-traded shares in CEC or any of its Affiliates), higher than the lesser of (1)ten percent (10%) of the Equity Interests in Tenant or (2)a Controlling legal or beneficial interest in Tenant, may collectively hold an amount of the indebtedness secured by a Permitted Leasehold Mortgage higher than the lesser of (x)twenty-five percent (25%) thereof and (y)the principal amount thereof required to satisfy the threshold for requisite consenting lenders to amend the terms of such indebtedness that affect all lenders thereunder."
"Rejected ROFR Property: Any ROFR Property located outside of Las Vegas, Nevada, that was the subject of a Propco Opportunity Transaction pursuant to the ROFR Agreement and with respect to which (a)either (i) Propco waived (or was deemed to have waived) the Propco ROFR, or (ii)Propco exercised the Propco ROFR but a ROFR Lease with respect to such ROFR Property was not executed following the conclusion of the procedures set forth in Section3(e) of the ROFR Agreement, and (b)an Affiliate of CEC subsequently consummated the Propco Opportunity Transaction without Propcos (or its Affiliates) involvement."
"Rent Reduction Amount: (i) With respect to the Base Rent, a proportionate reduction of Base Rent, which proportionate amount shall be determined by comparing (1)the EBITDAR of the Leased Property for the Trailing Test Period versus (2)the EBITDAR of the Leased Property for the Trailing Test Period calculated to remove the EBITDAR attributable to the portion of the Leased Property affected by the Partial Taking or that is being removed from this Lease or otherwise excluded from the determination of Rent (as applicable) and (ii)with respect to Variable Rent, a proportionate reduction of Variable Rent calculated in the same manner as set forth with respect to Base Rent above. Following the application of the Rent"
"is generally used by CEOC, its Affiliates and their respective Subsidiaries for their respective properties, including any and all Intellectual Property comprising and/or related to the Total Rewards Program, or (v)is developed, created or acquired by or on behalf of Services Co or any of its Subsidiaries and is not a derivative work of any Intellectual Property licensed to Services Co."
"a consolidated basis on such date in accordance with GAAP less (b)the aggregate amount of all cash or cash equivalents of such Person and its Subsidiaries (provided, that, in the case of cash or cash equivalents held by Domestic Subsidiaries of a Person that is not incorporated in, or organized under the laws of, the United States or any state or territory thereof or the District of Columbia, such cash must be held at a bank or other financial institution located in the United States or any territory thereof or the District of Columbia) that would not appear as restricted on a consolidated balance sheet of such Person and its Subsidiaries to (ii)EBITDA."
"(b) Payment of Rent until Commencement of Variable Rent. On the Commencement Date, a prorated portion of the first monthly installment of Rent shall be paid by Tenant for the period from the Commencement Date until the last day of the calendar month in which the Commencement Date occurs, based on the number of days during such period. Thereafter, for"
"payment should have been made until paid. If it shall be determined as a result of such audit that the applicable Variable Rent Statement did not understate the per annum Variable Rent payable during any Variable Rent Payment Period by more than two and one-half percent (2.5%), then Landlord shall pay to Tenant all reasonable, out-of-pocket costs and expenses incurred by Tenant in making such determination, including the cost of the audit. In addition, if any Variable Rent Statement shall be found to have willfully and intentionally understated the per annum Variable Rent by more than five percent (5%), such understatement shall, at Landlords option, constitute a Tenant Event of Default under this Lease. Any audit conducted pursuant to this Section3.2(c) shall be performed subject to and in accordance with the provisions of Section23.1(c) hereof. The receipt by Landlord of any Variable Rent Statement or any Variable Rent paid in accordance therewith for any period shall not constitute an admission of the correctness thereof."
"3.5 Net Lease. Landlord and Tenant acknowledge and agree that (i)this Lease is and is intended to be what is commonly referred to as a net, net, net or triple net lease, and (ii)the Rent (including, for avoidance of doubt, following commencement of the obligation to pay Variable Rent hereunder, the Base Rent and Variable Rent components of the Rent) and Additional Charges shall be paid absolutely net to Landlord, without abatement, deferment, reduction, defense, counterclaim, claim, demand, notice, deduction or offset of any kind whatsoever, so that this Lease shall yield to Landlord the full amount or benefit of the installments of Rent (including, for the avoidance of doubt, following commencement of the obligation to pay Variable Rent hereunder, the Base Rent and Variable Rent components of the Rent) and Additional Charges throughout the Term, all as more fully set forth in Article V and except and solely to the extent expressly provided in Article XIV (in connection with a Casualty Event), in Article XV (in connection with a Condemnation), in Section3.1 (in connection with the true-up, if any, applicable to the onset of a Variable Rent Payment Period) and in Section41.17. If Landlord commences any proceedings for non-payment of Rent, Tenant will not interpose any defense, offset, claim, counterclaim or cross complaint or similar pleading of any nature or description in such proceedings unless Tenant would lose or waive such claim by the failure to assert it. This shall not, however, be construed as a waiver of Tenants right to assert such claims in a separate action brought by Tenant. The covenants to pay Rent and Additional Charges hereunder are independent covenants, and Tenant shall have no right to hold back, deduct, defer, reduce, offset or fail to pay any such amounts for default by Landlord or for any other reason whatsoever, except solely as and to the extent provided in Section3.1 and this Section3.5."
"4.2 Utilities and Other Matters. Tenant shall pay or cause to be paid all charges for electricity, power, gas, oil, water and other utilities used in the Leased Property. Tenant shall also pay or reimburse Landlord for all costs and expenses of any kind whatsoever which at any time with respect to the Term hereof may be imposed against Landlord by reason of any Property Documents, or with respect to easements, licenses or other rights over, across or with respect to any adjacent or other property which benefits the Leased Property or any Capital Improvement, including any and all costs and expenses associated with any utility, drainage and parking easements relating to the Leased Property (but excluding, for the avoidance of doubt, any costs and expenses under any Fee Mortgage Documents)."
"(d) Notwithstanding the foregoing, the Parties acknowledge that, as of the Commencement Date, for GAAP purposes this Lease is not expected to be treated as a true lease and that the Parties will prepare Financial Statements consistent with GAAP (and for purposes of any SEC or other similar governmental filing purposes), as applicable."
"under such new ground lease with which Tenant is not otherwise obligated to comply under this Lease (and, without limiting the generality of the foregoing, Tenant shall not be required to incur any additional monetary obligations (whether for payment of rents under such new Ground Lease or otherwise) in connection with such new Ground Lease) (except to a de minimis extent), unless Tenant approves such additional obligations in its sole and absolute discretion."
"9.6 Security Interest in FF&E Reserve Funds. Tenant grants to Landlord a first-priority security interest in the FF&E Reserve and all FF&E Reserve Funds, as additional security for performance of Tenants obligations under this Lease. Landlord shall have the right to collaterally assign the security interest granted to Landlord in the FF&E Reserve and FF&E Reserve Funds to any Fee Mortgagee. If required by Fee Mortgagee, Landlord and Tenant shall (and Tenant shall cause Manager to) enter into a customary and reasonable control agreement for the benefit of Fee Mortgagee or Landlord with respect to the FF&E Reserve. Notwithstanding the foregoing or anything herein to the contrary, (i)Landlord may not foreclose upon the lien on the FF&E Reserve and FF&E Reserve Funds, and Fee Mortgagee, pursuant to the Tri-Party Agreement, shall agree not to apply the FF&E Reserve Funds against the Fee Mortgage, in each case, prior to the occurrence of both (x)Landlords Enforcement Condition and (y)the termination of this Lease by Landlord pursuant to Section16.2(a) hereof, and (ii)prior to the occurrence of Landlords Enforcement Condition, (except as provided in Section10.5(e) or Section16.7) Fee Mortgagee or Landlord may only apply FF&E Reserve Funds toward Permitted FF&E Expenditures incurred by Tenant if and only if a Tenant Event of Default has occurred and is continuing."
"(e) During and following completion of such Work, the parking and other amenities which are located on or at the Leased Property shall remain adequate for the operation of the Facility for its Primary Intended Use and not be less than that which is required by law (including any variances with respect thereto) and any applicable Property Documents; provided, however, with Landlords prior consent, which approval shall not be unreasonably withheld, conditioned or delayed, and at no additional expense to Landlord, (i)to the extent sufficient additional parking is not already a part of an Alteration or Capital Improvement, Tenant may construct additional parking on or at the Leased Property; or (ii)Tenant may acquire off-site parking to serve the Leased Property as long as such parking shall be reasonably proximate to, and dedicated to, or otherwise made available to serve, the Leased Property;"
"(i) any information, certificates, licenses, permits or documents reasonably requested by Landlord which are necessary and obtainable to confirm that Tenant will be able to use the Material Capital Improvements upon completion thereof in accordance with the Primary Intended Use, including all required federal, state or local government licenses and approvals;"
"(v) Partial Periods. If the initial or final portion of the Term of this Lease is a partial calendar year (i.e., the Commencement Date of this Lease is other than January1 or the Expiration Date is other than December31, as applicable; any such partial calendar year, a Stub Period), then the Triennial Minimum Cap Ex Amount B shall be adjusted as follows: (a)the initial (or final, as applicable) Triennial Period under this Lease shall be expanded so that it covers both the Stub Period and the first (1st) (or final, as applicable) full period of three calendar years during the Term, (b)the Triennial Minimum Cap Ex Amount B for such expanded initial (or final, as applicable) Triennial Cap Ex Calculation Period shall be equal to (x)Three Hundred Fifty Million and No/100 Dollars ($350,000,000.00), plus (y)the product of the Stub Period Multiplier multiplied by One Hundred Sixteen Million Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six and No/100 Dollars ($116,666,666.00), and (c)the Triennial Allocated Minimum Cap Ex Amount B Floor for such expanded initial (or final, as applicable) Triennial Period shall remain unchanged from the amounts then in effect. Notwithstanding the foregoing, in the event that the Triennial Minimum Cap Ex Amount B is reduced in accordance with the definition thereof, then (1)the Three Hundred Fifty Million and No/100 Dollars ($350,000,000.00) in the foregoing clause (b)(x) shall be modified to reflect the Triennial Minimum Cap Ex Amount B then in effect at the time of determination and (2)the One Hundred Sixteen Million Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six and No/100 Dollars ($116,666,666.00) in the foregoing clause (b)(y) shall be modified to reflect the Triennial Minimum Cap Ex Amount B then in effect divided by three (3). The term Stub Period Multiplier means a fraction, expressed as a percentage, the numerator of which is the number of days occurring in a Stub Period, and the denominator of which is three hundred sixty-five (365). For the avoidance of doubt, if the Expiration Date of this Lease is other than the last day of a Fiscal Year, then Tenants compliance with each of the Minimum Cap Ex Requirements during the applicable periods preceding such Expiration Date that would otherwise end after such Expiration Date shall be measured as of such Expiration Date and be subject to the prorations set forth above."
"(x) Certain Remedies. The Parties acknowledge that Tenants agreement to satisfy the Minimum Cap Ex Requirements as required in this Lease is a material inducement to Landlords agreement to enter into this Lease, the MLSA and the other Lease/MLSA Related Agreements and, accordingly, if Tenant fails to expend Capital Expenditures (or deposit funds into the Cap Ex Reserve) as and when required by this Lease and then, further, fails to cure such failure within sixty (60)days of receipt of written notice of such failure from Landlord, then the same shall be a Tenant Event of Default hereunder, and without limitation of any of Landlords other rights and remedies, Landlord shall have the right to seek the remedy of specific performance to require Tenant to expend the Required Capital Expenditures (or deposit funds"
"13.5 Limits of Liability and Blanket Policies. The insured limits of liability maintained by Tenant shall be selected by Tenant in a manner consistent with the commercially reasonable practices of similarly situated tenants engaged in the same or similar businesses operating in the same or similar location as the Leased Property. The limits of liability Tenant has in effect as of the Commencement Date satisfy the requirements of this Section as of the Commencement Date. The insurance required by this Article XIII may be effected by a policy or policies of blanket insurance and/or by a combination of primary and excess insurance policies (all of which may insure additional properties owned, operated or managed by Tenant or its Affiliates), provided each policy shall be satisfactory to Landlord, acting reasonably, including, the form of the policy, provided such policies comply with the provisions of this Article XIII."
"reason (whether by reason of the type, coverage, deductibles, insured limits, the reasonable requirements of Fee Mortgagees, or otherwise) commensurate with insurance customarily maintained by similarly situated tenants engaged in the same or similar businesses operating in the same or similar location, the party seeking the change will advise the other party in writing of the requested insurance revision. Tenant and Landlord shall work together in good faith to determine whether the requested insurance revision shall be made; provided, however, that any revision to insurance shall only be made if the revised insurance would be customarily maintained by similarly situated tenants engaged in the same or similar businesses operating in the same or similar location as the Leased Property. If Tenant and Landlord are unable to reach a resolution within thirty (30)days of the original notice of requested revision, the arbitration provisions set forth in Section34.2 shall control. Solely with respect to the insurance required by Section13.1(h) above, in no event shall the outcome of an insurance revision pursuant to this Section13.6 require Tenant to carry insurance in an amount which exceeds the product of (i)the amounts set forth in Section13.1(h) hereof and (ii)the CPI Increase."
"(c) Restoration. If there is a Partial Taking and this Lease remains in full force and effect, Landlord shall make available to Tenant the Award to be applied first to the restoration of the Leased Property in accordance with this Lease and, to the extent required hereby, any affected Tenant Material Capital Improvements, and thereafter as provided in Section15.2. In such event, subject to receiving such Award, Tenant shall accomplish all necessary restoration in accordance with the following sentence (whether or not the amount of the Award received by Tenant is sufficient) and the Rent shall be adjusted in accordance with the Rent Reduction Amount. Tenant shall restore the Leased Property (excluding any Tenant Material Capital Improvement, unless such Tenant Material Capital Improvement is integrated into the Facility such that the Facility could not practically or safely be operated without restoring such Tenant Material Capital Improvement) as nearly as reasonably possible under the circumstances to a complete architectural unit of the same general character and condition as the Leased Property existing immediately prior to such Taking."
"(b) Notwithstanding anything otherwise set forth herein, if Landlord chooses not to terminate Tenants right to possession of the Leased Property (whether or not Landlord terminates this Lease) and has not been paid damages in accordance with Section16.3(a), then each installment of Rent and all other sums payable by Tenant to or for the benefit of Landlord under this Lease shall be payable as the same otherwise becomes due and payable, together with, if any such amount is not paid when due, interest at the Overdue Rate from the date when due until paid, and Landlord may enforce, by action or otherwise, any other term or covenant of this Lease (and Landlord may at any time thereafter terminate Tenants right to possession of the Leased Property and seek damages under Section16.3(a), to the extent not already paid for by Tenant under Section16.3(a) or this Section16.3(b))."
"hereunder or fails to complete any work or restoration or replacement of any nature as required hereunder, or if Tenant shall take any action prohibited hereunder, or if Tenant shall breach any representation or warranty comprising Additional Fee Mortgagee Requirements (and Landlord reasonably determines that such breach could be expected to give rise to an event of default or an indemnification obligation of Landlord under the applicable Fee Mortgage Documents), or Tenant fails to comply with any Additional Fee Mortgagee Requirements (other than representations and warranties), in all cases, after the expiration of any cure period provided for herein, Landlord and/or its Affiliates, without waiving or releasing any obligation or default, may, but shall be under no obligation to, (i)make such payment or perform such act (or reimburse any Fee Mortgagee for making such payment or performing such act) for the account and at the expense of Tenant (including, in the event of a breach of any such representation or warranty, taking actions to cause such representation or warranty to be true), and may, to the extent permitted by law, enter upon the Leased Property for such purpose and take all such action thereon as, in Landlords reasonable opinion, may be necessary or appropriate therefor, and, (ii)subject to the terms of the applicable Fee Mortgage Documents, use funds in any Fee Mortgage Reserve Account for the purposes for which they were deposited in making any such payment or performing such act. All sums so paid (or reimbursed) by Landlord and/or any of its Affiliates and all costs and expenses, including reasonable attorneys fees and expenses, so incurred, together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Landlord and/or any of its Affiliates, shall be paid by Tenant to Landlord on demand as an Additional Charge."
"(i) Casualty Loss. A standard mortgagee clause naming each Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section17.1(b) hereof may be added to any and all insurance policies required to be carried by Tenant hereunder on condition that (and, in all events, Tenant agrees that) the insurance proceeds are to be applied in the manner specified in this Lease and the Permitted Leasehold Mortgage shall so provide; except that the Permitted Leasehold Mortgage may provide a manner for the disposition of such proceeds, if any, otherwise payable directly to Tenant (but not such proceeds, if any, payable jointly to Landlord and Tenant or to Landlord, to the Fee Mortgagee or to a third-party escrowee) pursuant to the provisions of this Lease."
"(l) Limitation of Liability. Notwithstanding any other provision hereof to the contrary, (i)Landlord agrees that any Permitted Leasehold Mortgagees liability to Landlord in its capacity as Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against such Permitted Leasehold Mortgagees interest in the Leasehold Estate and the other collateral granted to such Permitted Leasehold Mortgagee to secure the obligations under the loan secured by the applicable Permitted Leasehold Mortgage, and (ii)each Permitted Leasehold Mortgagee agrees that Landlords liability to such Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against Landlords interest in the Leased Property, and no recourse against Landlord shall be had against any other assets of Landlord whatsoever."
"(i) Clause (vii)of the definition of Primary Intended Use shall be deleted, and clause (v)of the definition of Primary Intended Use shall be modified to read as follows: (v) such other ancillary uses, but in all events consistent with the current use of the Leased Property or any portion thereof as of the Commencement Date or with then-prevailing or innovative or state-of-the-art hotel, resort and gaming industry use, and/or."
"Tenant acknowledges and agrees that (x)as of the Commencement Date, Joliet Partner is a minority interest holder in the landlord under the Joliet Lease and does not Control such landlord; and (y)for so long as the circumstances in clause (x)continue and the Joliet Partner continues to own no more than twenty percent (20%) of the interest in such landlord, neither Landlord nor any of its Affiliates shall be deemed to be a Tenant Competitor solely as a result of the circumstances in clause (x)."
"least thirty (30)days prior to the closing of the applicable Lease Foreclosure Transaction, specifying in reasonable detail the nature of such Lease Foreclosure Transaction and such additional information as Landlord may reasonably request in order to determine that the requirements of this Section22.2(i) are satisfied, which notice shall be accompanied by proposed forms of the Lease Assumption Agreement, the amendment to this Lease contemplated by the penultimate paragraph of this Section22.2, and if clause (1)(A) applies, the forms of proposed Replacement Guaranty and Replacement Management Agreement, (ii)assume (or, in the case of a foreclosure on or transfer of direct or indirect interests in Tenant, cause Tenant to reaffirm) in writing (in a form reasonably acceptable to Landlord) the obligations of Tenant under this Lease, the MLSA (to the extent the Property shall continue to be managed by the Manager under the MLSA), and all applicable Lease/MLSA Related Agreements to which Tenant is a party, from and after the date of the closing of the Lease Foreclosure Transaction (a Lease Assumption Agreement), (iii) provide Landlord with a copy of any such Lease Assumption Agreement and all other documents required under this Section22.2(i) as executed at such closing promptly following such closing and (iv)provide Landlord with a customary opinion of counsel reasonably satisfactory to Landlord with respect to the execution, authorization, and enforceability and other customary matters;"
"(C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i)the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii)the Internal Revenue Service (including in respect of Landlord REITs qualification as a real estate investment trust (within the meaning of Section856(a) of the Code)) and (iii)any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section23.1(c) below;"
"Tenant shall not constitute Additional Fee Mortgagee Requirements (it being understood that Landlord may agree to such financial covenants being imposed in any Fee Mortgage Documents so long as such financial covenants will not impose additional obligations on Tenant to comply therewith). For the avoidance of doubt, Additional Fee Mortgagee Requirements may include (to the extent consistent with the foregoing definition of Additional Fee Mortgagee Requirements) requirements of Tenant to:"
"(f) Landlord and Tenant acknowledge that, in connection with the implementation of the Bankruptcy Plan, CEC and Affiliates of Tenant were involved in the negotiations concerning the Existing Fee Mortgage Documents and reviewed the provisions, terms and conditions of the Existing Fee Mortgage Documents, and, accordingly, Tenant hereby consents and agrees to all provisions, terms and conditions of the Existing Fee Mortgage Documents as in effect as of the date hereof that comprise Additional Fee Mortgagee Requirements. If Landlord or its Affiliate anticipates entering into new or modified Fee Mortgage Documents that would modify or impose new Additional Fee Mortgagee Requirements, Landlord shall (x)provide copies of the same to Tenant with reasonably sufficient time prior to the execution and delivery thereof by Landlord or any Affiliate of Landlord to enable Tenant to timely comply with any such changes to the, or new, Additional Fee Mortgagee Requirements and (y)promptly upon the execution and delivery thereof by Landlord or any Affiliate of Landlord, deliver to Tenant an updated description thereof in accordance with the second sentence of this Section31.3."
"If any claim is made by Landlord for reimbursement for Environmental Costs incurred by it hereunder, Tenant agrees to pay such claim promptly, and in any event to pay such claim within sixty (60)calendar days after receipt by Tenant of written notice thereof and any amount not so paid within such sixty (60)calendar day period shall bear interest at the Overdue Rate from the date due to the date paid in full."
"(f) In determining Fair Market Ownership Value of the Leased Property or the Facility, the appraisers shall (in addition to taking into account the criteria set forth in the definition of Fair Market Ownership Value), add (i)the present value of the Rent for the remaining Term, assuming the Term has been extended for all Renewal Terms provided herein (with assumed increases in CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the credit worthiness of Tenant and any guarantor of Tenants obligations hereunder and (ii)the present value of the Leased Property or Facility as of the end of such Term (assuming the Term has been extended for all Renewal Terms provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no default exists under any guaranty of Tenants obligations hereunder."
"(g) In determining Fair Market Base Rental Value, the appraisers shall (in addition to the criteria set forth in the definition thereof and of Fair Market Rental Value) take into account: (i)the age, quality and condition (as required by the Lease) of the Improvements; (ii)that the Leased Property will be leased as a whole or substantially as a whole to a single user; (iii)when determining the Fair Market Base Rental Value for any Renewal Term, a lease term of five (5) years together with such options to renew as then remains hereunder; (iv)an absolute triple net lease; and (v)such other items that professional real estate appraisers customarily consider."
"(i) If, by virtue of any delay, Fair Market Base Rental Value is not determined by the first (1st) day of the applicable Renewal Term, then until Fair Market Base Rental Value is determined, Tenant shall continue to pay Rent during the succeeding Renewal Term in the same amount which Tenant was obligated to pay prior to the commencement of the Renewal Term. Upon determination of Fair Market Base Rental Value, Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment) within thirty (30)days of the date on which the determination of Fair Market Base Rental Value becomes binding."
"(b) Anything contained in this Lease to the contrary notwithstanding, the Parties acknowledge and agree that Landlord, in its sole discretion, may assign this Lease or any interest herein to another Person (including without limitation, a taxable REIT subsidiary (within the meaning of Section856(l) of the Code, or any similar or successor provision thereto)) in order to maintain Landlord REITs status as a real estate investment trust (within the meaning of Section856(a) of the Code, or any similar or successor provision thereto); provided however. Landlord shall be required to (i)comply with any applicable Legal Requirements related to such transfer and (ii)give Tenant notice of any such assignment; and provided further, that any such assignment shall be subject to all of the rights of Tenant hereunder."
"41.7 Entire Agreement. This Lease (including the Exhibits and Schedules hereto), together with the other Lease/MLSA Related Agreements, collectively constitute the entire and final agreement of the Parties with respect to the subject matter hereof, and may not be changed or modified except by an agreement in writing signed by the Parties. In addition to the foregoing, it is agreed to by the Parties that no modification to this Lease shall be effective without the written consent of (i)any applicable Fee Mortgagee, to the extent that such a modification would adversely affect such Fee Mortgagee, and (ii)any applicable Permitted Leasehold Mortgagee, to the extent that such a modification would adversely affect such Permitted Leasehold Mortgagee. Landlord and Tenant hereby agree that all prior or contemporaneous oral understandings, agreements or negotiations relative to the leasing of the Leased Property (other than the other Lease/MLSA Related Agreements) are merged into and revoked by this Lease (together with the related agreements referenced above)."
"41.9 Counterparts. This Lease may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument. This Lease may be effectuated by the exchange of electronic copies of signatures (e.g., .pdf), with electronic copies of this executed Lease having the same force and effect as original counterpart signatures hereto for all purposes."
"41.18 Integration with Other Documents. Each of Tenant and Landlord acknowledge and agree that certain operating efficiencies and value will be achieved as a result of Tenants and Other Tenants lease of the Leased Property and the Other Leased Property and the engagement by Tenant and Other Tenants of Manager under the MLSA and Manager under and as defined in each Other MLSA and the engagement of Manager and/or its Affiliates to operate and manage the Facility, the Other Leased Property and the Other Managed Resorts (as defined in each of the MLSA and the Other MLSA) that would not be possible to achieve if unrelated managers were engaged to operate each of the Leased Property, the Other Leased Property and the Other Managed Resorts. Each of Tenant and Landlord acknowledge and agree that the Parties would not enter into this Lease (or the MLSA or the Other MLSA) absent the understanding and agreement of the Parties that the entire ownership, operation, management, lease and lease guaranty relationship with respect to the Leased Property, including (without limitation) the lease of the Leased Property pursuant to this Lease, the use of the Managed Facilities IP (as defined in the MLSA) and the use of the Total Rewards Program, together with the other related intellectual property arrangements contemplated under the MLSA and the other covenants, obligations and agreements of the Parties hereunder and under the MLSA, form part of a single integrated transaction. Accordingly, it is the express intention and agreement of each of Tenant and Landlord that (i)each of the provisions of the MLSA, including the management and lease guaranty rights and obligations thereunder, form part of a single integrated agreement and shall not be or deemed to be separate or severable agreements and (ii)the Parties would not be entering into this Lease without entering into the MLSA (and vice versa) (or into any of the other Lease/MLSA Related Agreements without entering into all of the Lease/MLSA Related Agreements) and in the event of any bankruptcy, insolvency or dissolution proceedings in respect of any Party, no Party will reject, move to reject, or join or support any other Party in attempting to reject any one of this Lease or the MLSA or any other Lease/MLSA Related Agreement without rejecting the other agreement as if each of this Lease and the MLSA and each other Lease/MLSA Related Agreement were one integrated agreement and not separable."
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | | | | | | | | | | | | | | | | | | | Subtotal Property CapEx
"|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  Memo: Amount Allocated to Non-CLV, if Any"
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |
|  | | | |  | | | |  | | | |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  Less: Gaming Equipment CapEx (Enter as Negative Value)
"|  | | | |  | | | |  | | | |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  Memo: Non-CLV Amount, if Any (Enter as Negative Value)"
|  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  UEL - Horseshoe Southern Indiana - B&I CapEx Only
|  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  GBI - Harrahs Gulf Coast - B&I CapEx Only
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  CAC - Caesars Atlantic City - Net Revenue Only
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  JOL - Harrahs Joliet - Net Revenue Only
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  LAD - Harrahs Louisiana Downs - Net Revenue Only
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2011 for 2011
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2012 for 2013
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2016 for 2017
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  |
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2011 for 2013
PDF | | | | | | | 8569 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Its About Time |  | Las Vegas WatchGallery LLCd/b/aLas Vegas Watch Gallery | | LAS VEGAS WATCH GALLERYLLC - LEASE AGREEMENT |  | 12/13/2013 |  | 8942 - Las Vegas Watch Gallery LLC - Lease Agreement - Fully Executed.pdf 
"File Name | | | | | | | 8490 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Olive& Beauty |  | Olive& Beauty c/o Dollar Enterprises LLC |  | LEASE AGREEMENT |  | 5/24/2012 |  | 5187 - Dollar Enterprises, LLC - Lease Agreement - Fully executed.pdf | | | | | | | 8567 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Olive& Beauty |  | Olive& Beauty c/o Dollar Enterprises LLC |  | FIRST AMENDMENT TO THE LEASE AGREEMENT |  | 9/1/2013 |  |"
"|  |  | 12,635,542 |  |  |  | 12,140,413 |  |  |  | 12,056,328 |  |  |  | (579,215 | ) |  |  | 242,449 |  |  |  | 96,979,492 |  * * *"
"|  |  | 13,950,660 |  |  |  | 12,140,413 |  |  |  | 12,056,328 |  |  |  | (1,894,332 | ) |  |  | 60,822 |  |  |  | 24,328,825 |  * * *"
"3. Base Salary. While Executive is employed by the Company, the Company will pay Executive a base annual salary (the Base Salary) at the rate of $360,000 per year, paid in accordance with the usual payroll practices of the Company. Executives Base Salary shall be reviewed periodically for potential increases pursuant to Company review policies applicable to senior executives by the Compensation Committee of the Board (the Compensation Committee) or the Board."
"(f) Termination by the Company without Cause or by Executive for Good Reason Following a Change in Control. Upon a termination of Executives employment by the Company without Cause or by Executive for Good Reason, in each case within twelve (12) months after a Change in Control (as defined in the Companys 2010 Stock Incentive Plan, as amended and restated), Executive shall be entitled to receive the Accrued Benefits and, subject to Executives execution and non- revocation of the release described in Section6(g)and Executives compliance with Executives obligations under Section8, the following severance payments and benefits (collectively, the Change in Control Severance Benefits):"
"(ii) provided Executive and his eligible dependents timely and properly elect to continue health care coverage under COBRA, continued participation by Executive and Executives eligible dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for twelve (12) months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section105(h)of the Code, or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for twelve (12) months, which amount shall be paid in a lump sum at the same time payments under Section5(f)(i)commence and is intended to assist Executive with costs of health coverage, which Executive may (but is not required to) obtain through an election to continue health care coverage under COBRA; and"
"(a) Non-Competition. So long as Executive is employed by the Company under this Agreement and for the 9-month period following the termination of Executives employment with the Company for any reason (the Restricted Period), Executive agrees that Executive will not, directly or indirectly, without the prior written consent of the Company, engage in Competition with the Company or any of its affiliates (collectively, the Employer)."
"9. Assignment; Third Party Beneficiaries. Notwithstanding anything else herein, this Agreement is personal to Executive and neither the Agreement nor any rights hereunder may be assigned by Executive. The Company may assign the Agreement to an affiliate or to any acquiror of all or substantially all of the assets of the Company. The Employer shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Unless expressly provided otherwise, Employer as used in this Agreement shall mean the Employer as defined in Section8(a)of this Agreement and any successor to its business and/or assets as aforesaid. This Agreement will inure to the benefit of and be binding upon the personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, legatees and permitted assignees of the parties. Executive acknowledges that this Agreement is intended to benefit the Company, its shareholders, and its and their parents, affiliates, subsidiaries, divisions, and related companies or entities, now existing or hereafter created. Both Executive and the Company further acknowledge and agree that the intended beneficiaries of this Agreement are entitled to enforce the provisions of this Agreement by seeking injunctive relief or any other appropriate remedy."
"(d) If any of the reimbursements or in-kind benefits provided for under this Agreement are subject to Section409A, the following rulesshall apply: (i)in no event shall any such reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred; (ii)the amount of such reimbursable expenses incurred, or the provision of in-kind benefits, in one tax year shall not affect the expenses eligible for reimbursement or the provision of in-kind benefits in any other tax year; and (iii)the right to such reimbursement for expenses or provision of in-kind benefits is not subject to liquidation or exchange for any other benefit."
"2. Consultation with Attorney; Voluntary Agreement. The Company advises Executive to consult with an attorney of his choosing prior to signing this Agreement. Executive understands and agrees that he has the right and has been given the opportunity to review this Agreement and, specifically, the General Release in Section1 above, with an attorney. Executive also understands and agrees that he is under no obligation to consent to the General Release set forth in Section1 above. Executive acknowledges and agrees that the payments to be made to Executive pursuant to the Employment Agreement are sufficient consideration to require him to abide with his obligations under this Agreement, including but not limited to the General Release set forth in Section1. Executive represents that he has read this Agreement,"
"|  | | | | | | |  | Prepaid Rent: |  | $60,000 |  | |  | |  | | | | | | |  | Tenant Paid Utilities: |  | N/A |  | |  | |  | "
|  | None | | F. |  | Base Year for Operating Expense Adjustment |  | 2009 | | G. |  | Guarantor(s) (see Paragraph 20.17): |  | Dr. Pascal Deschatelets and Dr. Cedric Francois | | H. |  | Addresses for Notices and Payments: |  | | | |  |
"5.06 Quiet Enjoyment. Except as provided in Article XV hereof to the extent that it may be applicable, if and so long as Tenant pays the prescribed rent and performs and observes all of the terms, conditions, covenants and obligations of this Lease required to be performed or observed by it hereunder, Tenant shall at all times during the term hereof have the peaceful and quiet enjoyment, possession, occupancy and use of the Premises without any interference from Landlord or any person or persons claiming the Premises by, through or under Landlord, subject to any mortgages, underlying leases or other matters of record to which this Lease is or may become subject."
"6.01 Services to be Provided. Landlord shall furnish Tenant, without cost to Tenant except as otherwise specifically provided in this Lease, during standard hours of operation, with utilities and other building services, as provided in the Rules and Regulations, to the extent considered by Landlord to be reasonably necessary for Tenants comfortable use and occupancy of the Premises for general office use or as may be required by law or directed by governmental authority. Tenant shall pay for replacement of all lamps, starters and ballasts required as a result of normal usage, at the cost established from time to time by Landlord."
"8.01 Destruction of Premises. If the Premises are damaged or destroyed, in whole or in part, at any time during the Term by fire or other casualty and the Lease is not terminated pursuant to Paragraph 8.02, Landlord with due diligence will repair and rebuild the Premises so that after such work of repairing and rebuilding has been completed, the Premises shall be substantially the same as that prior to such damage. Any provisions contained in this Lease requiring repairs, rebuilding, restoration or reconstruction or providing for the use of insurance proceeds for any purpose shall be subject to the rights of the mortgagee of Landlord. In the event more than fifty percent (50%)of the Premises are damaged or destroyed and less than one (1)year is left in the term of the Lease, Landlord, at its election, may terminate this Lease rather than repair the Premises."
"8.10 Refund of Prepaid Base Rent. Any provision of this Lease to the contrary notwithstanding, in the event that this Lease is terminated after a fire or other casualty pursuant to the provisions of this Article VIII or otherwise due to a default by Landlord, then upon any such termination, Tenant shall be entitled to receive a pro-rata refund of any prepaid Base Rent paid to Landlord prior thereto."
"13.02 Tenant agrees that in the event of a foreclosure of any mortgage or deed of trust affecting the Premises, that in addition of Tenants attornment as set forth above in Paragraph 13.01, Tenant shall not hold any mortgagee or beneficiary of any purchaser at a foreclosure sale responsible for any defaults of any prior Landlord (including the original Landlord), or for the return of any security deposit required hereby."
"on account of rent then due, nor shall any statement on Tenants check or any letter accompanying Tenants check be deemed an accord and satisfaction, and Landlord may accept such payment without prejudice to Landlords right to recover the balance of the rent due or to pursue any other remedies provided in this Lease. No act or omission by Landlord or its employees or agents during the Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such a surrender shall be valid unless in writing and signed by Landlord."
"Tenant hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage, and disposal of Hazardous Material kept on the Premises by Tenant, and Tenant shall give immediate notice to Landlord of any violation or potential violation of the provisions of this Paragraph 17.01. Tenant shall defend, indemnify and hold harmless Landlord and its officers, managers, members, partners, employees and agents, as applicable, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses (including, without limitation, reasonable attorneys as well as all consultants fees, court costs, and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to (a)the presence, disposal, release, or threatened release of any such Hazardous Material that is on, from, or affecting the soil, water, vegetation, building, personal property, persons, animals, or otherwise; (b)any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to that Hazardous Material; (c)any lawsuit brought or threatened, settlement reached, or government order relating to that Hazardous Material; or (d)any violation of any laws applicable thereto. The provisions of this Article shall be in addition to any other obligations and liabilities Tenant may have to Landlord at law or equity and shall survive the transactions contemplated herein and shall survive termination of this Lease."
"19.05 Force Majeure. In any case where either party hereto is required to do any act, delays caused by or resulting from acts of God, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations, unusually severe weather or other causes beyond such partys reasonable control shall not be counted in determining the time during which work shall be completed, whether such time be designated by a fixed date, a fixed time or a reasonable time, and such time shall be deemed to be extended by the period of such delay. The provisions of this Paragraph 19.05 shall not operate to excuse Tenant from the prompt payment of Base Rent, Additional Rent or any other payments required by the terms of this Lease."
"19.21 Arbitration. With respect to any dispute arising under this Lease, Landlord and Tenant shall first use good efforts to resolve such dispute or matter between themselves. If the parties have not been able to resolve such dispute or matter after thirty (30)days from the date of the parties became aware of such dispute or matter, either party may submit the same for settlement by arbitration in Metro Louisville, KY, in accordance with the procedural rules then governing the American Arbitration Association or any successor thereto. The decision of the arbitrator shall be final, conclusive and binding upon the parties, and a judgment may be obtained thereon in any court having jurisdiction. Landlord and Tenant shall each pay one-half (1/2)of the cost and expense of such arbitration, and each shall separately pay for its own attorneys fees and expenses."
"32\. A directory of the Building will be provided for the display of the name and location of Tenant but Landlord will not in any event be obligated to furnish more than one (1)directory strip for the Premises. Any additional names which Tenant will desire to place in such directory must first be approved by Landlord, and if so approved, a charge will be made for them."
"1. | Second Expansion Space: The area of the Premises leased to Tenant under the Lease is expanded as of the Effective Date by an additional 3,325+/- square feet, the location of such additional area being depicted and labeled as the Second Expansion Space on the Exhibit A attached hereto and made a part hereof (the Second Expansion Space). As of the Effective Date the Second Expansion Space shall be encompassed and included within the definition of the Premises leased to Tenant under the Lease, and the area of the Premises is agreed to be 7,125 square feet. ---|--- "
"(1)In addition to Basic Rent, during the Lease Term, Tenant shall also pay to Landlord, as additional rent (Additional Rent), Tenants Proportionate Share of all Operating Costs for each calendar year or partial calendar year falling within the Term. This Lease is intended to be triple net, Landlord may make a good faith estimate of the Additional Rent to be paid by Tenant for any calendar year or part thereof during the Term, and Tenant shall pay to Landlord, on the Term Commencement Date and on the first day of each calendar month thereafter, an amount equal to the estimated Additional Rent for such calendar year or part thereof divided by the number of months therein.From timetotime, but not more than once in any calendar year, Landlord may estimate and reestimate the Additional Rent to be due by Tenant and deliver a copy of the estimate or reestimate to Tenant.Thereafter, the monthly installments of Additional Rent payable by Tenant shall be appropriately adjusted in accordance with the estimations so that, by the end of the calendar year in question, Tenant shall have paid all of the Additional Rent as estimated by Landlord.Any amounts paid based on such an estimate shall be subject to adjustment as herein provided when actual Operating Costs are available for each calendar year."
"Tenant detailing Landlords failure to pay such sums, and (ii) has not within such sixty (60) days sent to Tenant a written notice of Landlords objection in good faith to such costs, then Tenant shall send a second written notice to Landlord (the Repair Payment Default Notice), such Repair Payment Default Notice to include in the subject line the following text, in all capitals of at least 14 pt type: REPAIR PAYMENT DEFAULT NOTICE: FAILURE TO RESPOND WITHIN TEN (10) DAYS SHALL RESULT IN RENT OFFSET RIGHT OF TENANT. If Landlord has still not reimbursed Tenant for such sums or objected in good faith as provided above within ten (10) days following its receipt of the Repair Payment Default Notice, then Tenant shall thereafter have the right to offset the cost of performing such Landlord Repairs against the next installment of Rent coming due under this Lease."
"(b)Insurance Certificates and Notification.Tenant shall furnish to Landlord certificates of such insurance and such other evidence satisfactory to Landlord (35 Parkwood Realty LLC) and Management Company (Parsons Commercial Group, Inc.) of the maintenance of all insurance coverages required hereunder. Tenant shall notify Landlord at least thirty (30) days before cancellation of any such insurance policies."
"(h)Landlords Liability.Except for any default by Landlord under the terms of this Lease beyond applicable notice and cure periods and the negligence or willful misconduct of Landlord or any Landlord Party or its officers, agents, servants, employees or contractors, Landlord shall not be responsible or liable for any damage or injury to any property, fixtures, buildings or improvements, or to any person or persons, at any time in the Premises, including any damage or injury to Tenant or to any Tenant Party, and Landlords liability shall be limited as set forth in Section 26(b) below.To the maximum extent that this agreement may be made effective according to Law, Tenant agrees to use and occupy the Premises and to use such other portions of the Building or Common Areas as Tenant is herein given the right to use at Tenants own risk with respect to the fixtures or other personal property of Tenant, and except as may be expressly set forth herein, Landlord shall have no responsibility or liability for any loss of or damage to fixtures or other personal property of Tenant."
"(d)Award.If any Taking occurs, then Landlord shall receive the entire award or other compensation for the land on which the Building is situated, the Building, and other improvements taken, and Tenant may separately pursue a claim (to the extent it will not reduce Landlords award) against the condemnor for the value of Tenants personal property which Tenant is entitled to remove under this Lease, moving costs, loss of business, and other claims it may have."
"Tenant shall be liable for all taxes levied or assessed against personal property, furniture, or fixtures placed by Tenant in the Premises.If any taxes for which Tenant is liable are levied or assessed against Landlord or Landlords property and Landlord elects to pay the same, or if the assessed value of Landlords property is increased by inclusion of such personal property, furniture or fixtures and Landlord elects to pay the taxes based on such increase, then Tenant shall pay to Landlord, upon demand, the part of such taxes for which Tenant is primarily liable hereunder; however, Landlord shall not pay such amount if Tenant notifies Landlord that it will contest the validity or amount of such taxes before Landlord makes such payment, and thereafter diligently proceeds with such contest in accordance with law and if the nonpayment thereof does not pose a threat of loss or seizure of the Building or interest of Landlord therein or impose any fee or penalty against Landlord."
"(b)No Waiver.Landlords acceptance of Rent following an Event of Default shall not waive Landlords rights regarding such Event of Default.No waiver by Landlord of any violation or breach of any of the terms contained herein shall waive Landlords rights regarding any future violation of such term.Landlords acceptance of any partial payment of Rent shall not waive Landlords rights with regard to the remaining portion of the Rent that is due, regardless of any endorsement or other statement on any instrument delivered in payment of Rent or any writing delivered in connection therewith; accordingly, Landlords acceptance of a partial payment of Rent shall not constitute an accord and satisfaction of the full amount of the Rent that is due."
"Landlord shall perform, at its cost and expense except as otherwise set forth herein, the work in the office portion (the Office Work) of the Office/Lab Premises (the Office Space; as shown on the plan attached hereto as Exhibit D1 (the Plan) and described in the Building Standards included therein (the Office Building Standards).Landlord shall also perform, at its cost and expense up to the amount of Landlords Contribution (as defined below), the work in the laboratory portion (the Lab Work) of the Office/Lab Premises (the Lab Space; also as shown on the Plan (collectively, the Office Work and the Lab Work are referred to herein as Landlords Work).Included in Exhibit D-2 is a construction schedule for Landlords Work (the Construction Schedule) and a detailed budget for the Lab Work (the Lab Construction Budget), prepared by Walker Development & Construction Management Inc. (the General Contractor). As noted on the Lab Construction Budget and acknowledged by Tenant, the Lab Construction Budget does not include the costs of architectural, MEP/FP, or other required engineering or design services directly related to buildout of the Lab Space.Such costs, which are estimated by the architect of record for Landlords Work, Maugel Architects, Inc. (the Architect) to total approximately $87,000, will be deducted from Landlords Contribution (as defined below).Landlord and Tenant agree that prior to commencement of the Lab Work, Landlord and the General Contractor shall execute a commercially reasonable construction management contract mutually acceptable to Landlord and the General Contractor (the Construction Management Contract).Tenant shall have the reasonable right to approve the Construction Management Contract, such approval not to be unreasonably withheld, conditioned or delayed, provided that the contract price and the schedule for the work set forth therein are materially consistent with the Lab Construction Budget and the Construction Schedule attached as Exhibit D-2.The Construction Management Contract will (x) provide for the General Contractors fee to be based on the Lab Construction Budget, as the same may be updated during performance of the Lab Work, (y) set forth the methodology for calculation of such fee, and (z) provide that the General Contractor shall make available for Landlords and Tenants review all updates to the Lab Construction Budget and the Construction Schedule, together with documentation establishing the costs of the Lab Work, including without limitation all payroll, invoices from subcontractors and materials providers, and expenses. Each of Landlord and Tenant represents that it has reviewed and approved the attached (i) Plan and Office Building Standards, and (ii) Construction Schedule and Lab Construction Budget.Landlord shall not commence any of Landlords Work until Landlord and Tenant have approved construction drawings (the Approved Construction Drawings) based on the Plan and Office Building Standards and pursuant to the provisions of this Exhibit D."
"Landlord shall use commercially reasonable efforts to prepare and deliver to Tenant construction drawings consistent with the Plan and the Office Building Standards within forty-five (45) calendar days following the full execution and delivery of this Lease, provided that Tenant shall not have requested any material change(s) to the Plan or the Office Building Standards as attached hereto. Tenant shall notify Landlord in writing within five (5) business days following Landlords submission of the construction drawings as to whether it approves of the construction drawings.If Tenant disapproves of the construction drawings, it shall notify Landlord in writing, specifying in reasonable detail the reasons for such disapproval.Landlord shall revise the construction drawings in accordance with such objections and deliver revised construction drawings within three (3) business days following its receipt of such objections.Tenant shall thereafter review and approve or specify in writing the reasons for disapproval of the revised construction drawings within three (3) business days following its receipt of the same. This process shall continue until the construction drawings have been approved and signed by Tenant, at which time they shall be considered Approved Construction Drawings.If Tenant fails to notify Landlord of its approval or disapproval of the construction drawings within five (5) business days (or, in the case of resubmitted construction drawings, with three (3) business days) of Landlords submission thereof, then Tenant shall be deemed to have approved the construction drawings in"
"A.The Tenant and Landlords predecessor, XXXXX LLC have entered into a certain Agreement dated ___________________, 20_______ (the Lease), covering certain property located at _________________________, XXXX, Massachusetts (the Premises) as more particularly described in the Lease, and being a portion of the property as more particularly described in the Mortgage (defined below)."
"4.Mortgagees Responsibilities.Mortgagee shall be responsible for performing Landlords obligations under the Lease from and after the date on which the Mortgagee succeeds to the interest of the Landlord.The Tenant agrees with the Mortgagee that the Tenant shall not voluntarily subordinate the Lease to any lien or encumbrance without the Mortgagees prior written consent.Notwithstanding the foregoing, nothing set forth herein shall prohibit, limit or impair Tenants right to terminate the Lease under Section 15, Section 16, Section 21 or Section 28 thereof and the Mortgagees consent to any such termination shall not be required."
"7.Parties Bound; Interpretation.This Agreement shall bind and inure to the benefit of the parties hereto, and their respective successors and assigns.As used herein, the term Tenant shall include the Tenant and its successors and assigns, and the term Landlord shall include the Landlord and its successors and assigns.The foregoing references to successors and assigns of the Tenant and the Landlord are not intended to and do not constitute consent by the Landlord or the Mortgagee to any assignment or sublease by Tenant of its interests under the Lease or any consent by Mortgagee by any assignment by Landlord of its interests under the Lease.The words foreclosure and foreclosure sale as used herein shall be deemed to include the acquisition of the Landlords estate in the Premises by voluntary deed (or assignment) in lieu of foreclosure, and the word Mortgagee shall include the Mortgagee herein specifically named and any of its successors and assigns, and anyone who shall have succeeded to Landlords interest in the Premises by, through or under foreclosure of the Mortgage, including, without limitation, any purchaser of the Premises through foreclosure or any successor or assign thereof.The use of the neuter gender in this Agreement shall be deemed to include any other gender, and words in the singular number shall be held to include the plural, when the sense requires."
"5.Landlord shall provide all door locks in each tenants leased premises, at the cost of such tenant, and no tenant shall place any additional door locks in its leased premises without Landlords prior written consent.On or before the Term Commencement Date, Landlord, at its expense, shall furnish to Tenant a number of card keys equal to the amount of Tenant Parking Spaces for entry into the Premises for Tenants employees who will be working in the Premises.Thereafter during the Term, Landlord will provide up to six (6) replacement card keys per year at its cost, and any additional required card keys shall be at the expense of Tenant."
"dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for twelve (12) months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section 105(h) of the Internal Revenue Code of 1986, as amended (the Code), or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive an amount equal to the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for twelve (12) months, which amount shall be paid in a lump sum at the same time payments under Section 5(e)(i) commence and is intended to assist Executive with costs of health coverage, which Executive may (but is not required to) obtain through an election to continue health care coverage under COBRA; and"
"(g) Payment to Executive of any Severance Benefits or Change in Control Severance Benefits, as applicable, shall be conditioned on Executives compliance with the requirements of Section 8 hereof and Executives execution of a general release in favor of the Company and its affiliates in substantially the form attached hereto as Exhibit A (the Release) and the lapse of any revocation period specified therein with the Release not having been revoked. The Release shall be provided to Executive within three (3) days of Executives termination of employment. Executive will forfeit all rights to the Severance Benefits and the Change in Control Severance Benefits, as applicable, unless, within sixty (60) days of Executives termination of employment, Executive executes and delivers the Release to the Company and such Release has become irrevocable by virtue of the expiration of the revocation period specified therein without the Release having been revoked (the first such date, the Release Effective Date). The Companys obligation to pay the Severance Benefits or the Change in Control Severance Benefits, as applicable, is subject to the occurrence of the Release Effective Date, and if the Release Effective Date does not occur, then the Company shall have no obligation to pay such Severance Benefits or Change in Control Severance Benefits, as applicable. Notwithstanding anything contained herein to the contrary, in the event that the period during which Executive may review and revoke the Release begins in one calendar year and ends in the following calendar year, any severance payments hereunder that constitute non-qualified deferred compensation subject to Section 409A of the Code shall be paid to Executive no earlier than January 1 of the second calendar year."
"(e) As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the Overpayments), or that additional amounts should be paid or distributed to Executive (collectively, the Underpayments). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against Executive or the Company, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Section 4999 of the"
"(b) Confidentiality. Executive agrees that Executive will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any person or entity, other than in the course of Executives assigned duties hereunder and for the benefit of the Employer, either while Executive is employed by the Company hereunder or at any time thereafter, any business and technical information or trade secrets, nonpublic, proprietary or confidential information, knowledge or data relating to the Employer whether the foregoing will have been obtained by Executive during Executives employment hereunder or otherwise. The foregoing will not apply to information that (i) was known to the public prior to its disclosure to Executive; (ii) becomes generally known to the public or in the Employers industry subsequent to disclosure to Executive through no wrongful act by Executive or any of Executives representatives; or (iii) Executive is required to disclose by applicable law, regulation or legal process (provided that Executive provides the Company with prior notice of the contemplated"
"disclosure and cooperates at the Companys cost with the Company in seeking a protective order or other appropriate protection of such information). The Company and Executive acknowledge that, notwithstanding anything to the contrary contained in this Agreement, pursuant to 18 USC  1833(b), an individual may not be held liable under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Company and Executive further acknowledge that an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order."
"(ii) In addition, the Company Inventions will be deemed work made for hire, as such term is defined under the copyright law of the United States, on behalf of the Employer and Executive agrees that the Company (or its designee) will be the sole owner of the Company Inventions, and all underlying rights therein, in all media now known or hereinafter devised, throughout the universe and in perpetuity without any further obligations or compensation to Executive. If the Company Inventions, or any portion thereof, are deemed not to be work made for hire, Executive hereby irrevocably conveys, transfers, assigns and delivers to the Company (or its designee), all rights, titles and interests, in all media now known or"
"16. Entire Agreement; Amendments. This Agreement and the agreements referenced herein contain the entire agreement of the parties relating to the subject matter hereof, and supersede in their entirety any and all prior and/or contemporaneous agreements, understandings or representations relating to the subject matter hereof, whether written or oral, including without limitation the Existing Agreement. No amendments, alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties hereto."
"3.1 Fixed Rent.Tenant shall pay fixed rent (the Fixed Rent) with respect to the Premises in monthly installments in accordance with the schedule set forth on Exhibit B attached hereto and made a part hereof, without prior notice or demand, and without any setoff or deduction whatsoever (except as expressly set forth herein), in advance, on the first day of each month at such place as Landlord may direct. If the Lease Term shall commence or expire on other than the first or last day, as applicable, of a calendar month, such monthly installment of Fixed Rent and any applicable Additional Rent, as set forth below, shall be prorated for each calendar day of such partial month."
"8.1 Limitations on Use. Tenant shall not transport, use, store, maintain, handle, generate, manufacture, dispose, discharge or release any Hazardous Material (as defined below in Section8.2) upon or about the Premises, or permit Tenant Responsible Parties (as defined below in Section8.2) to engage in such activities upon or about the Property, in violation of applicable laws and regulations. However, the foregoing provisions shall not prohibit the transportation to and from, and use, storage, maintenance and handling within the Premises of Hazardous Materials customarily used in the business or activity expressly permitted to be undertaken in the Premises under this Lease (Customary Hazardous Materials); provided: (a)such substances shall be used and maintained only in such quantities as are reasonably necessary for such permitted use of the Premises and the ordinary course of Tenants business therein, strictly in accordance with all applicable laws, prevailing standards and the manufacturers instructions therefor, (b)such substances shall not be disposed of, discharged or released in or about the Premises (except as may be permitted by applicable law), and shall be transported to and from the Premises in compliance with all applicable laws, (c)if any applicable law or Landlords trash removal contractor requires that any such substances be disposed of separately from ordinary trash, Tenant shall make arrangements at Tenants expense for such disposal directly with a qualified and licensed disposal"
"9. INDEMNIFICATION. Except to the extent caused by the negligence or willful misconduct of Landlord and/or its agents, representative, contractors or employees, Tenant covenants and agrees to exonerate, indemnify, defend, protect and save Landlord, Landlords managing agent and Landlords mortgagee (if any) (the Landlord Parties) harmless from and against any and all claims, demands, expenses, losses, suits and damages as may be occasioned by reason of (i)any accident, injury or damage occurring in the Premises causing injury to persons or damage to property (including, without limitation, the Premises); and (ii)the failure of Tenant to fully and faithfully perform the obligations and observe the conditions of this Lease. Landlord covenants and agrees to exonerate, indemnify, defend, protect and save Tenant and the Tenant Parties harmless from and against any and all claims, demands, expenses, losses, suits and damages as may be occasioned by reason of (i)the negligence or willful misconduct of Landlord or any Landlord Parties; and (ii)the failure of Landlord to fully and faithfully perform the obligations and observe the conditions of this Lease. The obligations of the parties pursuant to this Section9 shall survive the expiration or earlier termination of the Lease. "
"12.10 Comply with the Building Rules and Regulations, and any reasonable and non-discriminatory amendments, modifications and/or additions thereto as may hereafter be adopted and published by written notice to tenants by Landlord for the safety, care, security, good order and/or cleanliness of the Premises and/or the Building. Landlord agrees to enforce such rules and regulations against all tenants in the Building in a non-discriminating fashion and Landlord shall not be liable to Tenant for any violation of such rules and regulations by any other tenant or occupant of the Building, but shall use commercially reasonable efforts to enforce such rules and regulations to the extent the violation thereof by other tenants or occupants interferes with Tenants use and occupancy of the Premises;"
"(a) Personal Property. Tenant agrees that all risks (including that of fire or other casualty, theft or other harm, damage or loss) to Tenants Personal Property, including the loss of use of the same, shall be borne solely by Tenant, except to the extent of loss caused by the negligence or willful misconduct of Landlord, subject to Section16.3 below. As used herein, Personal Property includes, but is not limited to, all of Tenants tangible and intangible goods and accounts, inventory, merchandise, furniture, fixtures, equipment (including computer equipment and any data stored thereon) and systems. Tenant shall purchase and maintain insurance in an amount adequate to repair or replace or otherwise cover its Personal Property (and the Personal Property of others held or leased by Tenant or otherwise in the Premises)and any Alterations made by Tenant after the Lease Commencement Date."
"22.1 The estate, interest and rights hereby created are subordinate to any mortgage now or hereafter placed upon the Building or the Land or any estate or interest therein, including, without limitation, any mortgage on any leasehold estate, and to all renewals, modifications, consolidations, replacements and extensions of the same as well as any substitutions therefor. Tenant agrees that in the event any person, firm, corporation or other entity acquires the right to possession of the Building or the Land, including any mortgagee or holder of any estate or interest having priority over this Lease, Tenant shall, if requested by such person, firm, corporation or other entity, attorn to and become the tenant of such person, firm, corporation or other entity, upon the same terms and conditions as are set forth herein for the balance of the Lease Term. Notwithstanding the foregoing, any mortgagee may, at any time, subordinate its mortgage to this Lease, without Tenants consent, by notice in writing to Tenant, and thereupon this Lease shall be deemed prior to such mortgage without regard to their respective dates of execution and delivery, and in that event, such mortgagee shall have the same rights with respect to this Lease as though it had been executed prior to the execution and delivery of the mortgage."
"hundred and fifty percent (150%) for the first thirty (30)days of such holding over, and increasing thereafter to two hundred percent (200%), of the daily Annual Fixed Rent and Additional Rent at the rate prior to such holdover for the time Tenant thus remains in possession in holdover plus all other damages, costs and expenses sustained by Landlord by reason of Tenants holding over; however Tenant shall not be liable for any consequential damages incurred by Landlord unless Tenants holding over exceeds sixty (60)days. Without limiting any rights and remedies of Landlord resulting by reason of the wrongful holding over by Tenant, or creating any right in Tenant to continue in possession of the Premises, all Tenants obligations with respect to the use, occupancy and maintenance of the Premises shall continue during such period of unlawful retention."
"30.3 Waivers. No delay or forbearance by Landlord or by Tenant in exercising any right or remedy hereunder or in undertaking or performing any act or matter which is not expressly required to be undertaken by such party shall be construed, respectively, to be a waiver of Landlords or Tenants rights or to represent any agreement by Landlord or by Tenant to undertake or perform such act or matter thereafter."
"3\. ADJUSTMENT TO OPERATING EXPENSES. In determining Operating Expenses for any Operating Year and for the Operating Base Year, if the Building was less than fully occupied during such entire year, or was less than fully operational during such entire year, then Operating Expenses shall be adjusted by Landlord to reflect the amount that such expenses would normally be expected to have been, in the reasonable opinion of Landlord, had the Building been ninety-five percent (95%) occupied and fully operational throughout such year, except that in no event shall such adjustment result in an amount less than the actual Operating Expenses."
"5\. AUDIT. Tenant shall have the right to examine, audit and photocopy Landlords books and records relating to Tenants Proportionate Share of Operating Expenses and Taxes for any Operating Year for a period of six (6)months following the date that Tenant receives the Operating Statement and Tax Statement; provided, however, that (a)Tenant may exercise such right only one time with respect to any Operating Year; and (b)Tenant signs a confidentiality agreement in form satisfactory to Landlord in its sole discretion. In connection with Tenants examination in accordance with the preceding sentence, Tenant shall have the right to review the invoices and statements relating to the Operating Expenses and Taxes for the Operating Base Year and Tax Base Year. Tenant shall give Landlord not less than thirty (30)days prior written notice of its intention to examine and audit such books and records, and such examination and audit shall take place in the city where the Premises are located. All costs of the examination and audit shall be performed by a certified public accountant and shall be on a non-contingent fee basis and shall be borne by Tenant; provided, however, that if such examination and audit establishes that Tenants Proportionate Share of Operating Expenses and Taxes for the year in question are less than the amount set forth on the Operating Statement and Tax Statement by at least five percent (5%), then Landlord shall pay the reasonable costs of such examination and audit. If the payments made by Tenant for such year are more than Tenants required payment on account thereof for such Operating Year, Landlord shall promptly refund such overpayment. If the payments made by Tenant for such year are less than Tenants required payment on account thereof for such Operating Year, Tenant shall pay the deficiency to Landlord within thirty (30)days after conclusion of the examination and audit as well as Landlords actual out-of-pocket costs in connection with such examination and audit. The obligation to make such refund or payment for any period within the Lease Term shall survive expiration of the Lease Term. If Tenant does not elect to exercise its right to examine and audit Landlords books and records for any Operating Year within the time period provided for by this Section6, Tenant shall have no further right to challenge Landlords Operating Statement and Tax Statement."
"The following Building Rules and Regulations, hereby accepted by Tenant, are prescribed by Landlord to enable Landlord to provide, maintain and operate, to the best of Landlords ability, clean, orderly and desirable Premises, Building and parking areas for Tenant therein at as economical a cost and in as efficient a manner as reasonably possible to assure for the security and protection of Tenant so far as reasonably possible, and to regulate conduct in and use of said Premises, Building and parking areas in such manner as to minimize interference by others in the proper use of same by Tenant. To the extent the Building Rules and Regulations (as same may be amended) are inconsistent with the terms and provisions of the Lease (as same may be amended), the terms and provisions of the Lease shall control."
"(15)days after Landlord and Tenant have both received the reports of the first two (2)appraisers, then either party may request the Greater Boston Board of Real Estate to appoint the third (3rd) appraiser and such appraiser shall be the third (3) appraiser. The third (3rd) appraiser shall notify Landlord and Tenant of the third (3rd) appraisers determination as to whether the Landlords Rate or the Tenants Rate is closest to the fair market rate and such determination shall be the fair market rate for the applicable Extension Term. Landlord and Tenant shall each bear the costs of its respective appraiser except that Landlord and Tenant shall each bear one-half (1/2) the cost of the third (3rd) appraiser, if applicable."
"1\. Subject to: (a)Tenant not being in an Event of Default upon exercise of the Right of First Offer; and (b)Tenant not having assigned its interest in this Lease or subleased more than fifty percent (50%) of the Premises (in each case, other than to a Permitted Transferee), Tenant shall have a one (1)time right of offer (the Right of Offer) to lease space any space that becomes available on the twelfth (12th) floor of the Building (the Offer Premises). The term one-time shall mean with respect to the particular space which is the subject of an Offer Notice (as defined below), but Tenant shall continue to have a Right of Offer with respect to any portion of the Offer Premises which is not the subject of any Offer Notice."
"(a) Discretionary Bonus. Executive will be eligible to receive an annual target cash bonus of 45% of Executives Base Salary (the Target Annual Bonus) (pro-rated for any portion of a year during which Executive is not employed by the Company) at the discretion of the Board or the Compensation Committee and contingent upon attainment of certain Company milestones and/or individual objectives as determined by the Board or the Compensation Committee. The actual annual bonus payable for any given year, if any, may be higher or lower than the Target Annual Bonus. Payment of such bonus is contingent upon continued employment with the Company at the time of payment unless otherwise specified herein or in the terms pursuant to which such bonus is granted. Executives Target Annual Bonus shall be reviewed periodically for potential increases pursuant to Company review policies applicable to senior executives by the Compensation Committee or the Board."
"(a) Any termination of Executives employment by the Company or Executive (other than because of Executives death) shall be communicated by a written notice of termination to the other party hereto in accordance with the requirements of this Agreement. Upon termination of Executives employment with the Company, Executive shall be deemed to have resigned from all positions that Executive holds as an officer or member of the board of directors (or a committee thereof) of the Company or any of its affiliates."
"(c) Termination upon Disability. Disability means any physical or mental incapacity, illness or infirmity that prevents or significantly restricts Executive from performing the normal duties of Executives position on a full- time basis despite the provision, if requested, of a reasonable accommodation as that term is defined in the American with Disabilities Act. If Executive suffers a Disability and the Disability continues for a continuous period of more than three months, then the Company shall have the right to terminate Executives employment upon written notice to Executive, at which time all of Executives rights to compensation and benefits under Sections 3, 4 and 5 herein or otherwise shall immediately terminate, except that Executive shall be entitled to the Accrued Benefits."
"(d) Termination by the Company for Cause. The Company may, upon written notice to Executive, immediately terminate Executives employment for Cause. Cause shall exist upon (i)Executives breach of any fiduciary duty or material legal or contractual obligation to the Company or any of its affiliates (including, without limitation, pursuant to a"
"Company or affiliate policy or the restrictive covenants set forth in Section8 of this Agreement or any other applicable restrictive covenants between Executive and the Company or any of its affiliates), (ii)Executives failure to follow the reasonable instructions of the Chief Executive Officer or the Board (other than as a result of total or partial incapacity due to physical or mental illness), which failure, if curable, is not cured within 30 days after notice to Executive specifying in reasonable detail the nature of such breach, or, if cured, recurs within 90 business days, (iii)Executives gross negligence, willful misconduct, fraud, insubordination, acts of dishonesty or conflict of interest relating to the Company or any of its affiliates, or (iv)Executives commission of any misdemeanor which has a material impact on the affairs, business or reputation of the Company or any of its affiliates or Executives indictment for, or plea of nolo contendere to, a crime constituting a felony under the laws of the United States or any state thereof. Upon a termination of Executives employment for Cause, all of Executives rights to compensation and benefits under Sections 3, 4 and 5 of this Agreement or otherwise shall immediately terminate, except that Executive shall be entitled to the Accrued Benefits."
"(f) Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section7. For purposes of making the calculations required by this Section7, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code."
"(i) Return of Property. On the date of the termination of Executives employment with the Company for any reason (or at any time prior thereto at the Companys request), Executive will return all property belonging to the Employer (including, but not limited to, any Employer provided laptops, computers, cell phones, wireless electronic mail devices or other equipment, or documents and property belonging to the Employer)."
"(k) Survival of Provisions. The obligations contained in this Section8 will survive the termination of Executives employment with the Company and will be fully enforceable thereafter. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section8 is excessive in duration or scope or extends for too long a period of time or over too great a range of activities or in too broad a geographic area or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the law of that state or jurisdiction."
"5. Governing Law. This Agreement and any other document or instrument delivered pursuant hereto, and all claims or causes of action that may be based upon, arise out of or relate to this Agreement will be governed by, and construed under and in accordance with, the internal laws of the State of Delaware, without reference to rulesrelating to conflicts of laws."
"6. Entire Agreement. This Agreement, the Employment Agreement and the other agreements referred to in the Employment Agreement constitute the entire agreement and understanding of the parties with respect to the subject matter herein and supersedes all prior agreements, arrangements and understandings, written or oral, between the parties. Executive acknowledges and agrees that he is not relying on any representations or promises by any representative of the Company concerning the meaning of any aspect of this Agreement."
"Wal-Mart Stores, Inc., a Delaware corporation and its United States operating subsidiaries including Sams West, Inc. (Walmart), and National Vision, Inc., a Georgia corporation (Manager), enter into this Management & Services Agreement (Agreement) as of May 1, 2012 (the Effective Date). Walmart and Manager are individually referred to as a Party and collectively referred to in this Agreement as the Parties."
"B. Indemnity by Manager. Subject to the provisions of Section X.D. and X.E., Manager shall indemnify, defend, and hold harmless Walmart and its Indemnitees, against any Claim for Damages raised or asserted by a third party, including a government entity, even if the Claim is groundless, fraudulent, or false, to the extent resulting from or arising out of: (i) any violation by Manager of a patent, copyright, trademark, trade secret, or other proprietary right of such third party; (ii) any actual or alleged breach of this Agreement by Manager, including, but not limited to, any breach by Manager of the representations and warranties and covenants contained in this Agreement; (iii) any violation of applicable law by Manager; (iv) any actual or alleged negligence or willful misconduct by Manager; and (v) all sales, gross receipts and other taxes, including penalty and interest, assessed against Walmart if and to the extent such assessment is attributable to Managers failure to collect or pay to Walmart or the taxing authority the correct amount of state or local tax or both on taxable sales of Goods. Claim means any action, cause of action, claim, or any other assertion of a legal right. Damages means out of pocket damages and expenses and includes punitive damages, fines, judgments, losses, liabilities and expenses (including, but not limited to, reasonable attorneys fees and costs, expert witness fees and bond premiums) and regulatory actions, sanctions or settlement"
"B. Entire Agreement and Confirmation. This Agreement (including the documents referred to in this Agreement) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter of this Agreement. Upon the reasonable request of a Party, the other Party shall provide a statement that this Agreement is unmodified and in full force and effect, except to the extent that the foregoing is not the case,"
"O. Press Releases. Neither Party will issue public press releases of any kind referencing the other Party, this Agreement or the Parties conduct under this Agreement without the express written permission of the other Party except as may be required by applicable law. If the Parties do agree to issue or allow the other Party to issue any such press release, then such press release will be subject to each Partys prior written approval of both the content and the type of release not to be unreasonably withheld or delayed. Without limiting the generality of the foregoing, a Party may not, except as otherwise provided in this Agreement, use the other Partys stock ticker symbol or logos without the other Partys express prior written consent. In no event will a Party be entitled to use the other Partys logo or other trademarks without such Partys prior written consent, and if such consent is given, such use must be in accordance with the fashion and style and usage as approved by such Party."
"15. LESSORS TITLE; RETURN OF FF&E UPON EXPIRATION OR TERMINATION OF LEASE; IDENTIFICATION OF FF&E: Title to the FF&E will at all times remain in Lessors name and Lessee will at all times, at its own cost and expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the FF&E free and clear from all such claims, liens and processes resulting from Lessees use or operation of the FF&E. Lessee agrees not to alter or modify the FF&E without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or earlier termination of this Lease, as governed by Paragraph 2 above, Lessee, at Lessors sole expense, and using a delivery or shipping method selected by Lessor and insured at Lessors sole expense, shall return the FF&E unencumbered to Lessor at a place or places reasonably acceptable to Lessor (Delivery Location), and in the same condition as when received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Notwithstanding the foregoing, that portion of the FF&E which consists of optical displays will, upon the expiration or earlier termination of this Lease, be deemed abandoned by Lessor and disposed of by Lessee at its sole cost and expense, unless Lessor, by notice to Lessee sent at least thirty (30) days prior to the expiration or earlier termination of this Lease, affirmatively directs Lessee to return such items to the Delivery Location pursuant to the provisions of the preceding sentence."
"24. FINANCING STATEMENTS: Lessor is hereby authorized by Lessee to cause this Lease, or any statement or other instrument in respect of this Lease showing the interest of Lessor in the FF&E, including Uniform Commercial Code financing statements, to be filed or recorded and re-filed and re-recorded and Lessee authorizes Lessor, if it so elects, to file a financing statement Lessee agrees to execute and deliver any statement or instrument requested by Lessor for such purpose."
"1. In compliance with 42 U.S.C. 17935(b) and its implementing regulations, as of its Compliance Date or no more than 90-days following the Effective Date, whichever is earlier, Business Associate shall request, Use, and Disclose only the minimum amount of PHI necessary to accomplish the purpose of the request, Use, or Disclosure."
"D. In addition to any damages recoverable under this BAA, the parties acknowledge that certain breaches or violations of this BAA may result in litigation or investigations pursued by federal or state governmental authorities of the United States resulting in civil liability or criminal penalties. Each party shall cooperate in good faith in all respects with the other party in connection with any request by a federal or state governmental authority for additional information and documents or any governmental investigation, complaint, action, or other inquiry."
"E. Ownership and Usage. Any Walmart Information, including in any reconfigured format, shall at all limes be and remain the sole property of Walmart, unless agreed otherwise in writing by Walmart. Any usage of Walmart Information is limited to the sole purpose expressly authorized by this contract, the Agreement, or otherwise authorized in writing by Walmart."
"2. At Walmarts request, Manager will provide Walmart copies of its data privacy and security policies and procedures that apply to Walmart Information. Subject to reasonable notice, Manager shall provide the Walmarts ISD Security Group an opportunity to conduct a privacy and security audit of Managers Information Security Program and systems and procedures that are applicable to the Services provided by Manager to Walmart. Such audit may be conducted on-site by Walmart personnel or Walmarts contracted third party assessors or through surveys and interviews, at the option of Walmart; provided, however, that such audit shall be conducted in a manner that will not materially disrupt Managers day-to-day operations."
"(a) The employment term (the Employment Term) of Executives employment under this Agreement shall be for the period commencing on the date hereof (the Commencement Date) and ending on the third (3rd) anniversary of the Commencement Date. Thereafter, the Employment Term shall extend automatically for consecutive periods of one year unless either party provides notice of non-renewal not less than ninety (90) days prior to the end of the Employment Term as then in effect or unless Executives employment terminates in accordance with Section 5."
"6.Notice of Termination. Any purported termination by the Company or by Executive shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a Notice of Termination shall mean a notice that indicates a termination date, the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executives employment under the provision so indicated. For purposes of"
"(v) Executives outstanding equity awards will be treated in accordance with the terms of 2014 Plan and the applicable award agreements; provided that the Company shall cause the immediate vesting of any outstanding unvested equity- based awards held by Executive as of his termination date that pursuant to their terms would have vested within 12 months following such date. In the event of a termination in anticipation of a Change in Control, the portion (if any) of Executives equity awards that remain unvested after giving effect to the previous sentence shall remain outstanding until the earliest to occur of (i) the expiration of the term of such award, (ii) the date that is six (6) months following Executives termination date and (iii) a Change in Control."
"(e) Validity. It is the intent and desire of Executive and the Company that the restrictive provisions of this Section 10 be enforced to the fullest extent permissible under the laws and public policies as applied in each jurisdiction in which enforcement is sought. If any particular provision of this Section 10 shall be determined to be invalid or unenforceable, such covenant shall be amended, without any action on the part of either party hereto, to delete therefrom the portion so determined to be invalid or unenforceable, such deletion to apply only with respect to the operation of such covenant in the particular jurisdiction in which such adjudication is made."
construction of a seven story laboratory and office building with two basement levels in massive construction on the above-named project property (referred to in the following as building permit); this notice (Attachment ./1) has become final and absolute. The building is a new construction being built by the Landlord without the aid of public funds. The location of the building can be seen in the site plan (Attachment ./2).
"5. | The Tenant gives his explicit consent to such changes. The Landlord will take specific change requests of the Tenant (e.g. moving partition walls and architectural details), which do not require appreciable additional cost nor cause a major delay, into account as far as appropriate and possible; the relevant details are clarified with the Landlords architect and recorded in an addendum to the building and interior description. ---|--- "
"2. | Deficiencies that impede the further adaptation or use of the rental property only insignificantly have no effect on the obligation to accept the rental property and the payment of rent. A withdrawal of the Tenant from the contract requires a delay, for which the Landlord is responsible, of the transfer of the office spaces by at least six weeks or the transfer of the laboratory spaces by at least eight weeks. ---|--- "
4. | Apportionment of ancillary charges: ---|--- The share of the ancillary charges to be borne by the Tenant is generally determined by the proportion of the useable area of the rental property (to be calculated in the sense of this Lease Agreement) to the useable area of all rental properties in the building.
"3. | In each case the Tenant shall bear all expenses connected with a modification of the rental property himself as well as indemnify and hold the Landlord harmless with respect to any expenses, damages, etc. The provisions of  1097 second sentence ABGB are, insofar as these provisions refer to  1037 ABGB, expressly waived. ---|--- "
"3. | Upon notice of termination, dissolution or termination of the tenancy, the Tenant shall, within the notice period or the period to vacate the premises, in any case, however, within the last three months prior to termination until the actual return of the rental property, allow prospective tenants to view the premises during normal business hours after arranging a time with the Tenant (at most, however, three time a week). ---|--- XI. Purpose of Use / Subletting /"
"1. | The rental property may be used exclusively for commercial purposes in connection with the development of pharmaceuticals, preclinical and clinical research and biotechnology as well as relevant laboratory activities (and connected or related activities). The Tenant shall comply with all legal and/or official regulations, orders and provisions applicable within the scope of his operation at his own expense and risk. The Tenant shall in particular also ensure that all waste arising from his operation is treated and disposed of in compliance with the relevant legal and official specifications, orders and provisions; if possible via a direct contract between the Tenant and the waste disposal company. ---|--- All official permits required for the business operation of the Tenant, including the operational plant permit and supply and disposal contracts for public services, including the treatment and disposal of waste or substances and liquids/wastewater that require treatment, connection and supply of electrical power, media services etc., shall be procured or concluded by the Tenant at his own expense and risk, and he shall bear all associated taxes, fees and charges. The Tenant shall fulfill all official requirements at his own expense and comply with all relevant legal and official specifications, orders and provisions, and he shall also indemnify and hold the Landlord harmless in this respect. Should, however, due to the structural conditions of the rental property, it not be possible to obtain an operational plant permit for operating a laboratory for biotechnology, the Tenant has the right to rescind the contract."
6. | The use and/or subletting of the rental property to third parties for purposes other than those defined in the agreement is explicitly agreed upon as a reason for termination in the sense of  30 Par. 2 Z 13 MRG; this does not affect the right of termination in accordance with other provisions. ---|--- 
"2. | The Tenant shall remove any business signs and advertisements with the company logo at his own expense, properly remove all traces thereof and repair any resulting damage to the mounting location. In the event of a violation of this provision, after setting a reasonable grace period, the Landlord has the right to arrange for the removal and disposal of the advertising material without further notice at the Tenants expense. ---|--- "
" | damages and expenses, are respected. For the time being this bank guarantee shall be withdrawable for five years, but it shall, at least three months prior to expiration, continually be extended for at least another five years in the amount of six times the then applicable gross monthly rent. In each case the bank guarantee shall include a provision that the right to use the bank guarantee and the right to withdraw the guarantee amount can, upon sale of the rental property, be ceded to the respective legal successor of the Landlord. ---|--- "
"| | | | ---|---|---|---|--- Attachments: |  | ./1 |  | Lease Agreement of 11/26/2010 |  | ./2 |  | 1st Addendum to the Lease Agreement of 08/31/2012 |  | ./3 |  | 2nd Addendum to the Lease Agreement of 10/09/2012 Vienna, on June04, 2014"
"| | | | ---|---|---|---|--- Attachments: |  | ./1 |  | Lease Agreement of 11/26/2010 |  | ./2 |  | 1st Addendum to the Lease Agreement of 08/31/2012 |  | ./3 |  | 2nd Addendum to the Lease Agreement of 10/09/2012 |  | ./4 |  | 3rd Addendum to the Lease Agreement of 03/31/2014 |  | ./5 |  | Contract plan |  | ./6 |  | List of equipment Vienna, on June04, 2014"
"| | ---|---|--- PROPERTY: |  | Helmut Qualtinger Gasse 2, 1030 Vienna | LANDLORD: |  | Wstenrot Marxbox GmbH & Co. OG | TENANT: |  | ARSANIS Biosciences GmbH | LEASE AGREEMENT: |  | 11/26/2010 | Space: |  | 3rd upper floor: 698.10 m2 office and laboratory; 2nd basement level: 25 m2 storage bay | Parking spaces: |  | 5 (on the 1st basement level) | Term: |  | indefinite period, Tenants waiver of the right to terminate prior to 04/30/2021; if Tenant does not terminate with statutory notice prior to 04/30/2021, extension of the waiver of the right to terminate to 04/30/2022 | Rent: |  | Office and Laboratory: 17.00/m2 (excl. VAT) per month, storage bay: 6.50/m2 (excl. VAT) per month, parking spaces: 98.50 (excl. VAT) per parking space per month; payment of ancillary charges: 2.90/m2 (excl. VAT) per month | 1st ADDENDUM: |  | 08/31/2012 | Space: |  | 3rd upper floor: 458.98 m2 additional | Term: |  | as before | Rent: |  | 19.71/m2 (excl. VAT) per month as of transfer of the additional space for the entire area on the 3rd upper floor | Furthermore: |  | building cost subsidy for the Tenant of 100,000.00 | 2nd ADDENDUM: |  | 10/09/2012 | Parking spaces: |  | 2 additional (on the 1st basement level) | Term: |  | as before | Rent: |  | 100.00 (excl. VAT) per parking space per month for the additional parking spaces; payment of ancillary charges: 2.90/m2 (excl. VAT) per month | 3rd ADDENDUM: |  | 06/04/2014 | Space: |  | 2 bicycle parking spaces (0.80 m2) in the bicycle room (ground floor) | Term: |  | as before | Rent: |  | 10.00 (excl. VAT) per parking space per month; payment of ancillary charges: 2.50/m2 (excl. VAT) per month * * *"
"Company Inventions, and will promptly disclose all Company Inventions completely and in writing to the Company. The Records will be the sole and exclusive property of the Company, and Executive will surrender them upon the termination of Executives employment, or upon the Companys request. Executive hereby assigns to the Company (or its designee) the Company Inventions including all rights in and to any related patents and other intellectual property that may issue thereon in any and all countries, whether during or subsequent to Executives employment with the Employer, together with the right to file, in Executives name or in the name of the Company (or its designee), applications for patents and equivalent rights (the Applications). Executive will, at any time during and subsequent to Executives employment with the Employer, make such applications, sign such papers, take all rightful oaths, and perform all acts as may be requested from time to time by the Company with respect to the Company Inventions and the underlying intellectual property. Executive will also execute assignments to the Company (or its designee) of the Applications, and give the Company and its attorneys all reasonable assistance (including the giving of testimony) to obtain the Company Inventions and the underlying intellectual property for its benefit, all without additional compensation to Executive from the Company, but entirely at the Companys expense."
"(iv) To the extent that any of the Company Inventions are derived by, or require use by the Employer of, any works,Inventions, or other intellectual property rights that Executive owns, which are not assigned hereby, Executive hereby grants to the Company (or its designee) an irrevocable, perpetual, transferable, worldwide, non-exclusive, royalty free license, with the right to sublicense, use, modify and create derivative works using such works,Inventions or other intellectual property rights, but only to the extent necessary to permit the Company to fully realize their ownership rights in the Company Inventions."
"deferred compensation subject to Section409A shall be delayed until the earlier of (i)the first business day following the six-month anniversary of the date of Executives separation from service, or (ii)the date of Executives death, but only to the extent necessary to avoid the adverse tax consequences and penalties under Section409A. On the earlier of (x)the first business day following the six-month anniversary of the date of Executives separation from service, or (y)Executives death, the Company shall pay Executive (or Executives estate or beneficiaries) a lump-sum payment equal to all payments delayed pursuant to the preceding sentence."
"a. In consideration of the amounts to be paid by the Company pursuant to the Employment Agreement entered into on [Date], 2017, by and between the Company and Executive (the Employment Agreement), Executive, on behalf of himself and his heirs, executors, devisees, successors and assigns, knowingly and voluntarily releases, remises, and forever discharges the Company and its parents, subsidiaries or affiliates, together with each of their current and former principals, officers, directors, shareholders, agents, representatives and employees, and each of their heirs, executors, successors and assigns (collectively, the Releasees), from any and all debts, demands, actions, causes of action, accounts, covenants, contracts, agreements, claims, damages, omissions, promises, and any and all claims and liabilities whatsoever, of every name and nature, known or unknown, suspected or unsuspected, both in law and equity (Claims), which Executive ever had, now has, or may hereafter claim to have against the Releasees by reason of any matter or cause whatsoever arising from the beginning of time to the time he signs this Agreement (the General Release). This General Release of Claims shall apply to any Claim of any type, including, without limitation, any and all Claims of any type that Executive may have arising under the common law, under the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Older Workers Benefit Protection Act, the Americans With Disabilities Act of 1967, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, the Sarbanes-Oxley Act of 2002, each as amended, the Fair Credit Reporting Act, the Fair Credit Reporting Act, 15 U.S.C.  1681, et seq., the Worker Adjustment and Retraining Notification Act, 29 U.S.C.  2101, et seq., the Equal Pay Act of 1963, claims for wrongful discharge in violation of public policy, claims under the Employment Discrimination Bureau (EDB)  Pennsylvania, the Pennsylvania Family Leave Act, the Pennsylvania Workers Compensation Act, the Pennsylvania State Wage and Hour Law, the Pennsylvania Law on Equal Pay, the Pennsylvania Political Activities of Employees Law, the Pennsylvania Lie Detector Testing Law, the Pennsylvania Tobacco Use Law, the Pennsylvania Genetic Testing Law, the State of Pennsylvania Labor Relations Act, the Pennsylvania Human Rights Law, and the Pennsylvania Labor Law, claims for discrimination in violation of the Pennsylvania Human Relations Act, each as amended, and any other federal, state or local statutes, regulations, ordinances or common law, or under any policy, agreement, contract, understanding or promise, written or oral, formal or informal, between any of the Releasees and Executive and shall further apply, without limitation, to any and all Claims in connection with, related to or arising out of Executives employment relationship, or the termination of his employment, with the Company."
"c. In consideration of the promises of the Company set forth in the Employment Agreement, Executive hereby releases and discharges the Releasees from any and all Claims that Executive may have against the Releasees arising under the Age Discrimination Employment Act of 1967, as amended, and the applicable rulesand regulations promulgated thereunder (ADEA). Executive acknowledges that he understands that the ADEA is a federal statute that prohibits discrimination on the basis of age in employment, benefits and benefit plans. Executive also understands that, by signing this Agreement, he is waiving all Claims against any and all of the Releasees."
"E. All Alterations, whether temporary or permanent in character, made in or upon the Premises either by Landlord or Tenant (other than Tenants Personal Property installed or placed on the Premises by or on behalf of Tenant) shall be Landlords property, and will remain with the Premises without compensation to Tenant. Notwithstanding the foregoing, in the case of any Alteration requiring Landlords prior written approval, Landlord may condition such approval on Tenants agreement to remove all or a portion of such Alteration at the end of the Term if, but only if, the Alteration will not, in the reasonable estimation of Landlord, have one or more of the causes and effects described in clauses (i)through (iv), inclusive, of Subsection 15.A. above, provided that Landlord may not, in any event, require the removal of any bank vault or safe deposit box installed by Tenant. Upon any termination of this Lease or Tenants right of possession of the Premises, all Alterations on the Premises required by Landlord to be removed as aforesaid, or any part or parts thereof so designated by Landlord at the time of Landlords approval, shall be removed from the Premises and the Premises restored to the same or better condition than existed immediately prior to the construction of the Alteration, reasonable wear and tear excepted."
"herein, Tenant shall have the right, but not the obligation, to remove any safe deposit boxes, overnight deposit boxes, drive-up teller kiosks and any associated improvements, on or prior to surrendering the Premises, provided that, if Tenant elects to not so remove such property, they shall become Landlords personal property on expiration or termination of this Lease and further provided that, if Tenant removes such items, Tenant shall be solely responsible for any repairs made necessary by such removal to bring the Premises to the same or better condition as on the Commencement Date, reasonable wear and tear excepted."
"16. ENTRY BY LANDLORD. Subject to Section17, except in emergency situations, Landlord or Landlords Representatives shall have the right to enter, from time to time, the Premises or any portion thereof during Normal Working Hours (or at such other times as approved by Tenant, which approval shall not be unreasonably withheld or delayed) to (i)inspect the Premises, (ii)exercise its rights and/or obligations under this Lease, or (iii)show the Premises to prospective purchasers, lenders or, during the last twenty-four (24) months of the Term or any Renewal Term, to prospective tenants; and Tenant shall not be entitled to any abatement or reduction of Base Rent by reason thereof, nor shall such entry or action by Landlord constitute an actual or constructive eviction or repossession, without Landlords express intention to do so as expressed in writing. No such entry shall be deemed an eviction of Tenant. At any time during which Landlord or Landlords Representatives are on the Premises, they shall use commercially reasonable efforts to not interrupt or interfere with Tenants use of the Premises and shall not cause any damage or injury to persons or property on the Premises."
"means of a policy or policies of blanket property insurance so long as (i)the amount of the total insurance allocated to the Premises under the terms of the blanket policy or policies furnishes protection equivalent to that of separate policies in the amounts required by the terms of this Lease, and (ii)the blanket policy or policies comply in all other respects with the other requirements of this Lease."
"A. All proceeds (except business interruption insurance proceeds not allocated to Rent expenses) payable by reason of any property loss, damage, or destruction of or to the Premises by fire or other casualty, or any portion thereof, under any property policy of insurance required to be carried hereunder, shall be paid to Landlord Mortgagee if required under any Landlord Mortgage, if any (or if none, to Landlord), to be held in trust for purpose of restoration of the Premises and made available to Tenant upon request and in accordance with Landlord Mortgagees customary procedures, or if there is no Landlord Mortgagee, by Landlord, pursuant to the procedures set forth in this Section21 for the reasonable costs of preservation, stabilization, emergency restoration business interruption (other than any amount allocated to Rent expenses), reconstruction and repair, as the case may be, of any damage to or destruction of the Premises, or any portion thereof; provided, however, that the portion of such proceeds that are attributable to Tenants obligation to pay Rent shall be applied against Rent due by Tenant hereunder. If such proceeds are not made available to Tenant despite Tenants compliance with such customary procedures, Tenant shall have no obligation to restore the Premises. All proceeds paid to Tenant shall be used first for the repair of any damage to the Premises (other than such payment of Rent). Any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Premises to substantially the same condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality and to Landlords reasonable satisfaction, and in accordance with the general terms and conditions of ExhibitF attached hereto, as applicable (collectively, Restoration Standards), shall be provided to Tenant. All salvage resulting from any risk covered by insurance for damage or loss to the Premises shall belong to Tenant. Tenant shall have the right to prosecute and settle insurance claims, provided that Tenant shall consult with and involve Landlord in the process of adjusting any insurance claims under this Section21."
"receipt of Landlords written notice thereof; provided, however, if the breach cannot reasonably be cured within thirty (30) days, Tenant shall not be in default if Tenant commences to cure the breach within thirty (30) days of receipt of Landlords written notice and diligently and in good faith continues to prosecute the cure of said breach to completion within a commercially reasonable period of time; and (x)an event of default beyond all applicable notice and cure periods by Tenant under subsection 26(i)through subsection 26(viii)of an absolute lease agreement by and between Landlord and Tenant dated on or about the date hereof in substantially the same form as this Lease (each, a Portfolio Lease), or the subsection thereof analogous to Subsection 26(i)through Subsection 26(viii)hereof; provided (I)it shall not be an Event of Default by Tenant under this Subsection 26(x)if there is an event of default beyond all applicable notice and cure periods under subsection 26(i)of a Portfolio Lease, or the subsection thereof analogous to Subsection 26(i)hereof, unless there is such an event of default of the same character and nature under at least three (3)other Portfolio Leases, (II)it shall be deemed an event of default by Tenant under a Portfolio Lease for purposes of this Subsection 26(x)only if there is an event of default beyond all applicable notice and cure periods by the tenant under such Portfolio Lease and such tenant is the Tenant hereunder or has Transferred its interest therein other than pursuant to subsection 24.B. of such Portfolio Lease, or the section thereof analogous to Subsection 24.B. hereof, or pursuant to any other Transfer whereby Landlord relieved the originally named tenant under such Portfolio Lease of all liability thereunder and (III)it shall not be an Event of Default by Tenant under this Subsection 26(x)if the landlord under such Portfolio Lease is not Landlord or an Affiliate thereof."
"Repossessed Premises, nor shall Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlords then current leasing policies for comparable space in the applicable Building or for Buildings in the vicinity; (4)Landlord shall not be obligated to enter into a lease with a Substitute Tenant whose use would: (i)violate any restriction, covenant, or requirement contained in the lease of another tenant of the applicable Building; (ii)adversely affect the reputation of the applicable Building; or (iii)be incompatible with the operation of the applicable Building; and (5)Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlords reasonable opinion, sufficient financial resources to operate such Repossessed Premises in a first class manner and to fulfill all of the obligations in connection with the lease thereof as and when the same become due. No reletting shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous default and/or exercise its rights under Subsection 27.A. and Subsection 27.B."
"D. Pursuit of any of the above stated remedies by Landlord after an Event of Default by Tenant shall not preclude pursuit of any other remedy provided in this Lease or Law or equity, nor shall pursuit of any remedy constitute forfeiture or waiver of any payment due to Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default by Tenant shall not be deemed or construed to constitute a waiver of any other violation or default. Notwithstanding the foregoing, Tenant shall not be responsible for any consequential, indirect, speculative or punitive damages of Landlord."
"29. REMEDIES OF TENANT. Upon the occurrence of any Event of Default by Landlord, Tenant may pursue as follows: (A)(i)perform the obligations of Landlord in which event Landlord shall reimburse Tenant on demand for any reasonable and necessary costs and expenses which Tenant actually incurred in performing Landlords obligations, and, if Landlord fails to so reimburse Tenant within thirty (30) days of written demand, Tenant may (ii)bring suit"
"30. LANDLORD LIEN. Landlord hereby waives, releases and relinquishes any and all claims, rights, interests, liens upon and rights of distraint, levy, attachment or recourse (whether arising by virtue of statute, common law or otherwise) against Personal Property and Tenants Personal Property. Personal Property shall be all personal property on the Premises, which shall include, without limitation, specialized equipment unique to the nature of Tenants business, computer software, computer tapes, computer program tapes, computer program disks, computer program documentation and manuals, computer program codes, customer accounts, customer lists, customer information, inventory and proprietary information which may belong to Tenant or be in the possession of Tenant, which is located or used upon, in or about the Premises during the Term, or any renewal or extension thereof. The foregoing waiver, release and relinquishment is self-operative and does not require the necessity for any further instrument or document. Notwithstanding the foregoing, Landlord hereby agrees to furnish, upon written request, waivers of Landlords rights and liens as described herein and shall exempt the same from distraint, levy, attachment or recourse using Landlords standard form reasonably acceptable to Tenant. For the avoidance of doubt, no property of Tenants customers will be subject to a lien, distraint, levy, attachment or recourse from Landlord."
"D. Tenant shall promptly notify Landlord upon Tenant becoming aware of: (i)any enforcement, cleanup, or other regulatory action taken or threatened against either party by any governmental or regulatory authority with respect to the presence of any Hazardous Material at the Premises, or the migration thereof from or to other property, (ii)any demands or claims made or threatened by any party against either party hereto relating to any loss or injury resulting from any Hazardous Material or based on Environmental Laws, (iii)any Release of a reportable quantity of Hazardous Materials, unlawful discharge, or non-routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Premises and (iv)any matters where Tenant is required by Environmental Law to give a notice to any governmental or regulatory authority respecting any Hazardous Materials in, at, on, under or about the Premises. At such times as Landlord may reasonably request, Tenant shall provide the Landlord with a written list identifying any Hazardous Material then actually known by Tenant to be used, stored, or maintained in, on or upon the Premises. In such case, Tenant shall additionally provide Landlord with information with respect to the use and approximate quantity of each such material, a copy of any Material Safety Data Sheet issued by the manufacturer therefor, written information concerning the removal, transportation, and disposal of the same, and such other information as the requesting party may reasonably require or as may be required by the Environmental Law."
"E. Tenant shall indemnify, defend and hold Landlord and Landlords successors and assigns harmless, in the manner specified in Subsection 23.A., from and against any and all liability, claim, expense, cause of action, fines, judgments, settlements, investigation, monitoring and remediation costs, penalties, losses and damages (including reasonable attorneys, consultants and contractors fees) resulting or arising (i)from the breach by Tenant of its covenants and agreements set forth in this Section33, (ii)the presence, Release, placement on, in or around the Premises, or the generation, transportation, storage, use, treatment or disposal at or around the Premises of any Hazardous Materials before or during the Term by Tenant or any third party other than Landlord, (iii)any violation of or obligation under Environmental Law before or during the Term by Tenant or any third party other than Landlord, and (iv)from claims by governmental authorities or other third parties associated with Hazardous Materials or violations of or obligations under Environmental Laws by Tenant or any third party other than Landlord or Hazardous Materials present at, on, under or about the Premises during the Term, including, without limitation those that were discovered during the Term which were caused prior to the Term by Tenant or its agents, representatives, employees, contractors, subcontractors, licensees or invitees or"
"Tenant shall represent directly or indirectly that any Lease or any service provided by Landlord has been approved or endorsed by Tenant or Landlord or include the name, trade name, trade mark, or symbol or either party or its Affiliates in any lists (including lists of tenants or properties) or other communication without the identified partys express written consent. Subject to the requirements set forth in this Section35, Tenant acknowledges and agrees that Landlord may disclose certain information regarding this Lease and the Purchase and Sale Agreement to certain investors and potential investors in entities affiliated with Landlord."
"38. FORCE MAJEURE. Neither Landlord nor Tenant shall be deemed to be in default of this Lease if such default is due to acts of God, acts of the public enemy, acts of governmental authority (provided, however, that such party substantially complies with applicable Law and cooperated with the requirements of such governmental authority regarding approvals, permitting, registration, licensing, or similar legal requirements for the conduct of Tenant or Landlords business or the construction on or operation of all or any portion of the Premises), or any other circumstances which are not within the respective partys control (Force Majeure); provided, that this provision shall not apply to failures by either party to pay their respective monetary obligations to the other under this Lease."
"41. FINANCIAL STATEMENTS. Within ninety (90) days after the end of each fiscal year of Tenant, Tenant shall deliver to Landlord complete financial statements of the Tenant, including a balance sheet, profit and loss statement, statement of changes in financial condition and all other related schedules for the fiscal period then ended."
"53. WAIVER OF JURY TRIAL; CONSEQUENTIAL DAMAGES. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAYHAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAYHAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, LANDLORD AND TENANT EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAYHAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY HERETO AND ANY OF SUCH PARTYS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY THE WAIVING PARTY AGAINST THE OTHER PARTY HERETO OR ANY OF SUCH PARTYS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF THEIR"
"SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY LANDLORD AND TENANT OF ANY RIGHT IT MAYHAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN."
C. Failure by Tenant to provide a Sale Election Notice within the period for response set forth in Subsection 56.B. shall be deemed to mean that Tenant has delivered a Sale Election Notice electing clause (y)of Subsection 56.B. on the fifteenth (15th) business day following receipt of the applicable Sale Notice.
"3.2.1 liable for the failure of any prior landlord (any such prior landlord, including Borrower and Borrowers successors-in-interest, being hereinafter referred to as a Prior Landlord) to perform any of its obligations under the Lease that accrued prior to the date on which Purchaser became the owner of the Property, but this limitation of liability does not limit Purchasers obligations under the Lease to correct any conditions that (i)existed as of the date Purchaser became the owner of the Property, (ii)violate Purchasers obligations as landlord under the Lease, and (iii)Purchaser received written notice of such condition and had the opportunity to cure the same pursuant to the terms and conditions of Section5 of this Agreement;"
"4. NOTICE TO TENANT. After notice is given to Tenant by Mortgagee that Borrower is in default under the Loan Documents and that the amounts due from Tenant under the Lease should be paid to Mortgagee pursuant to the terms of the Security Instrument, Tenant shall thereafter pay directly to Mortgagee or as otherwise directed by Mortgagee, all rents and other amounts due or to become due to Borrower under the Lease, and Borrower hereby expressly authorizes Tenant to make such payments to Mortgagee and hereby releases and discharges Tenant from any liability to Borrower on account of any such payments. Borrower agrees to indemnify, defend, and save Tenant harmless from any claims, actions, losses, damages or expenses (including, without limitation, reasonable attorneys fees) arising from Tenants compliance with this Section4."
"1.15 Possession. Except for any sublease set forth in ExhibitA, Tenant is in full and complete possession of the Property and has accepted the Property, including any tenant improvements or other work of Owner performed thereon pursuant to the terms and provisions of the Lease, and the Property is in compliance with the Lease. There are no contributions, credits, free rent, rent abatements, deductions, concessions, rebates, unpaid or unreimbursed construction allowances, offsets or other sums due to Tenant from Owner under the Lease, except ."
"1.18 Financial Condition; Bankruptcy. Since the date of the Lease, there has been no material adverse change in the financial condition of the [Tenant / Owner], and there are no voluntary actions or, to Tenants best knowledge, involuntary actions pending against [Tenant / Owner]under the bankruptcy laws of the United States or any state thereof."
"Tenant. For purposes hereof, a material casualty or material condemnation shall be one which results in damage or a loss in an amount greater than ten percent (10%) of the ROFO Price, as determined by a third party independent contractor, engineer or appraiser approved by Landlord and Tenant in the exercise of their reasonable discretion. If Tenant shall not elect to terminate its obligation to purchase the Premises pursuant to this ExhibitH or the casualty or condemnation is not a material casualty or condemnation, as applicable, then the closing shall take place as herein provided, without abatement of the ROFO Price, and Landlord shall assign to Tenant at the closing, by written instrument in form reasonably satisfactory to Tenant, all of Landlords interest in and to any insurance proceeds or condemnation awards which may be payable to Landlord on account of any such fire, casualty or condemnation, shall deliver to Tenant any such proceeds or awards actually theretofore paid to Landlord."
"(f) If Tenant defaults in the closing of the purchase of the Premises as set forth above, then the Downpayment and any interest thereon shall be paid to Landlord promptly following request therefor. Landlord shall not have the right to bring suit against the Tenant for specific performance, damages or other legal or equitable relief, it being agreed that the remedy set forth in this clause (f)shall be the sole remedy of Landlord."
"Landlord and Tenant expressly acknowledge that, as to the components included in the definition of Fixed Rent (as defined below) this Lease shall be a gross lease and that except as expressly set forth in this Lease, no additional charges for the components that are part of the Fixed Rent shall be assessed or charged against Tenant. The Fixed Rent includes the following components: (1)base rent for the use of the Premises only; (2)the Services (as defined below) to be provided as part of the Fixed Rent; (3)Landlords costs to repair and maintain the Common Areas and the Premises as specified in Sections 12, 13 and 14 below except to the extent that this Lease expressly provides that Tenant is responsible for such costs; and (4)real estate taxes assessed against the Property except the Rental Taxes (as defined below)."
"If Tenant elects to exercise its renewal option pursuant to Section27 below, Tenant will pay Fixed Rent and Additional Rent (as defined below) to Landlord at pursuant to the terms and conditions of this Lease. The Fixed Rent for the Renewal Term (as herein defined) shall be increased by four percent (4%)as set forth in Exhibit F."
"the use of any part of the Premises from the uses designated in the preceding sentence and Exhibit C without Landlords prior written consent. If a proposed change in use increases the cost to Landlord of providing the Services and other costs that are included in Fixed Rent, Landlord may condition its consent to Tenants change in use on Tenants agreement to increase the Fixed Rent by the amount of Landlords increased costs and Tenants agreement to pay for any modifications to the site Infrastructure required for such change. If Landlord gives such consent, the Rent shall be adjusted accordingly. Tenant, in its use and occupancy of the Premises, shall not commit waste, shall not cause the insurance carried by Landlord pursuant to Section22 to be canceled, shall not cause a material disruption or impediment to Landlords use of the balance of the Project, nor overload the floors or structure, nor subject the Premises to any use which would tend to damage any portion thereof. In addition, Landlord grants Tenant the right to make use of the Common Areas (as defined below) at the Property in support of Tenants use of the Premises. In using the Common Areas, Tenant and its employees, agents, suppliers, shippers, customers, licensees and invitees shall comply with Landlords customary operating and security rules and regulations. Landlord shall require Tenant and its employees, agents, suppliers, shippers, customers, licensees and invitees to wear appropriate security identification while on the Premises or the Common Areas. The Premises and Common Areas may only be used by Tenant and its employees, agents, suppliers, shippers, customers, licensees and invitees who are necessary for Tenants permitted use of the Premises and/or to perform Tenants obligations under this Lease. Landlord and Tenant shall each cooperate and use reasonable efforts to assure that each of Landlord and Tenant may enjoy and use the Common Areas for their intended purposes."
"B. Upon the termination of this Lease, whether by forfeiture, lapse of time or otherwise, or upon termination of Tenants right to possession of the Premises, Tenant will at once surrender and deliver up the Office Space, together with all improvements thereon, to Landlord, broom swept, in the same configuration as existed as of the Commencement Date unless the Office Space has been altered in accordance with Section9 hereof and in as good condition and repair as existed on the Commencement Date of this Lease, reasonable wear and tear, damage or destruction from a Casualty (as defined below) for which Tenant is not obligated in this Lease to repair or restore and/or the taking of, damage to, or reduction in the size of the Office Space by eminent domain excepted. As used in this paragraph, the term, improvements shall include, without limitation, all plumbing, lighting, electrical, heating, cooling and ventilating fixtures and equipment, and all Alterations made to the Office Space after the Commencement Date. All Alterations, temporary or permanent, made in or upon the Office Space by Tenant shall become Landlords property and shall remain in the Office Space upon any such termination without compensation, allowance or credit to Tenant; provided, however, that Landlord shall have the right to require Tenant to pay Landlords cost (the Removal Cost) to remove any Alterations made without Landlords consent or as to which Landlord notifies Tenant that Tenant must remove and to repair any damage occasioned by such"
"removal and restoration. If Landlord requires removal of any Alterations, Tenant shall cause the same to be removed by contractors approved by Landlord to work at the site and Tenant shall pay the Removal Cost as Additional Rent in accordance with the procedures set forth in Section9B below. This Section shall survive termination of this Lease."
"C. Tenants trade fixtures, furniture, inventory, signs, goods, equipment, materials and other personal property used in Tenants business (collectively, Tenants Property) shall at all times remain personal property and, except for any of Tenants Property the removal of which is governed by De- facilitization and Decontamination Protocols or is considered to be a Change under Section31, may be removed from time to time by Tenant; provided, however, that Tenant shall be responsible for the cost and expense incurred by Landlord under Section9B to (i)repair any physical injury to the Project and Premises caused by the removal of any such property and (ii)return the Project and Premises to the condition prior to the installation of any of Tenants Property, reasonable wear and tear and casualty damage excepted. All removal of Tenants Property from the Premises which is hard-wired to the Buildings or would impact the Project Infrastructure must be done in accordance with Landlords then applicable Project-Wide Protocols and with Landlords consent. The removal of any of Tenants Property which constitutes a Change under Section31 must comply with the requirements of Section8 and Section9 above."
"D. Notwithstanding anything contained in this Section12, if Landlord and Tenant have entered into a separate written agreement with respect to Landlords use of some of Tenants equipment located in the Premises as specified in that separate agreement, the terms and conditions of that separate agreement shall control with respect to Landlords and Tenants rights and obligations with respect to such equipment."
"B. If a taking or condemnation occurs but there is no material interference with the use of the Premises for the purposes for which it is then being used, then this Lease shall not be terminated. The Rent payable hereunder shall be diminished by an amount based on the square footage and type of the portion of the Premises which was so taken or sold and Landlord shall, if the condemnation proceeds are made available to Landlord, at Landlords sole expense, restore and reconstruct the Premises to substantially their former condition to the extent that the same may be feasible, but Landlord shall in no event be required to spend for such work an amount in excess of the amount received by Landlord as compensation or damages (over and above amounts therefrom paid to the mortgagee, if any, of the Property taken) for the portion of the Premises so taken. Tenant shall not be entitled to and expressly waives all claim to any such compensation, damage or award, but Tenant may file a separate claim for the taking of any fixtures or improvements owned by Tenant and for moving expenses."
"(iii) (a) the making by Tenant of any general assignment for the benefit of creditors; (b)Tenant becoming a debtor as defined in 11 U.S.C. Section101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60)days); or (c)the appointing of a trustee or receiver to take possession of substantially all of Tenants assets located at the Premises or of Tenants interest in this Lease, where possession is not restored to Tenant within sixty (60)days."
"Hazardous Substance means any substance, product, matter, material, waste, solid, liquid, gas, Chemical, pollutant, contaminant, or agent located in or about or coming from the Facilities, the generation, storage, transportation, disposal, handling, recycling, Release (as hereinafter defined), threatened Release, or treatment of which is regulated, controlled, prohibited, or limited under any Environmental Law, including, without limitation, the following: (i)gasoline, diesel fuel, fuel oil, motor oil, waste oil, and any other petroleum hydrocarbons, including any additives or other by-products associated therewith; (ii)asbestos and asbestos-containing materials in any form; (iii)polychlorinated biphenyls; (iv)isopropyl alcohol; (v)ethylene glycol; (vi)radioactive materials; and (vii)any substance that (A)requires reporting or remediation under any Environmental Law, (B)causes or threatens to cause a nuisance in the Premises or in adjacent space or poses or threatens to pose a hazard to health or safety of persons in the Premises or in adjacent space, or (C)which, if it emanated or migrated from the Premises or from adjacent space could constitute a trespass, nuisance or health or safety hazard to persons on the Property outside the Premises."
"(iv) Conditions of approval may include, but will not necessarily be limited to, Tenants agreement that Landlord shall perform its obligations under the Lease or provide the Services as a result of the Change and/or that Tenant shall pay any increased costs that Landlord will incur to perform said obligations and provide said Services."
"Tenant shall, from time to time upon not less than ten (10)business days prior written request by Landlord, deliver to Landlord and any third party requested by Landlord, a statement in writing stating upon the partys knowledge and belief: (a)that this Lease is unmodified and in full force and effect, or that there have been modifications and that the Lease as modified is in full force and effect; (b)the dates to which Rent and other charges have been paid; (c)that Landlord or Tenant are not in default under any provision of this Lease or, if in default, a detailed description thereof; and (d)as to any other matters as may reasonably be so requested. Any such certificate may be relied upon by the Landlord and any other person, firm or corporation to whom the same may be exhibited or delivered and the contents of such certificate shall be binding on Tenant. If any such estoppel is not executed within such ten (10)business day period, then, in addition to any other right or remedy which Landlord may have, at Landlords option, Landlord may execute any such estoppel on behalf of Tenant as Tenants attorney-in- fact, and Tenant hereby appoints Landlord its attorney-in-fact for such purpose. Such appointment and agency are coupled with an interest and are irrevocable."
"BOTH PARTIES ACKNOWLEDGE AND AGREE THAT LANDLORD HAS AGREED TO PROVIDE THE PREMISES HEREUNDER AS AN ACCOMMODATION TO TENANT AND THAT LANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PREMISES OR THE SERVICES TO BE PROVIDED HEREUNDER EXCEPT AS SPECIFICALLY PROVIDED HEREIN. TENANT AGREES THAT IT IS NOT RELYING ON ANY WARRANTY OR REPRESENTATION MADE BY LANDLORD, LANDLORDS AGENTS, OR ANY BROKER CONCERNING THE USE OR CONDITION OF THE PREMISES, COMMON AREAS OR THE PROPERTY. TENANT ACKNOWLEDGES AND AGREES THAT IT HAS INSPECTED THE PREMISES AND THAT IT ACCEPTS THE PREMISES IN THEIR PRESENT AS-IS, WHERE IS PHYSICAL CONDITION, WITHOUT ANY OBLIGATION BY LANDLORD TO PAINT, REDECORATE, OR PERFORM ANY OTHER WORK IN, ON OR ABOUT THE PREMISES AT ANY TIME, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS LEASE. LANDLORD HAS NOT MADE, AND WILL NOT MAKE, ANY WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PREMISES, THE BUILDINGS, COMMON AREAS OR ANY OTHER PORTION OF THE PROJECT, AND LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF SUITABILITY, HABITABILITY OR MERCHANTABILITY WITH RESPECT TO THE SAME."
"E. Landlord and Tenant acknowledge that if Landlord has emergency nursing services on site, Tenant may utilize such nursing services available in the case of a Tenant emergency without liability to Landlord; provided, however, that such nursing services may not be available on any days when Landlords operations in the Project are shutdown. Tenant shall be responsible for any industrial injuries arising out of or related to its use of the Premises."
"Name 000814-49-3 |  | Diethyl chlorophosphate |  | 0134237-31-3 |  | Pentachlorotrifluoropropane |  | 068958-61-2 |  | Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl[ | | | | | 001306-19-0 |  | Cadmium oxide |  | 0134237-32-4 |  | HCFC 121 |  | 073772-32-4 |  | 1-Propanesulfonic acid, 3-[[3-(dimethyla | | | | | 001314-20-1 |  | Thorium dioxide |  | 0134237-34-6 |  | HCFC 131 |  | 077536-66-4 |  | Asbestos compounds | | | | | 001332-21-4 |  | Asbestos (friable) |  | 0134237-35-7 |  | HCFC 221 | | 077536-67-5 |  | Asbestos compounds | | | | | 001336-36-3 |  | PCBs |  | 0134237-36-8 |  | HCFC 222 |  | 077536-68-6 |  | Asbestos compounds | | | | | 001336-36-3 |  | Polychlorinated biphenyls |  | 0134237-37-9 |  | HCFC 223 |  | 081190-38-7 |  | 1-Propanaminium, N-(2-hydroxyethyl)-3- | | | | | 001600-27-7 |  | Mercuric acetate |  | 0134237-38-0 |  | HCFC 224 |  | 091081-99-1 |  | Sulfonamides, C4-8-alkane, perfluoro, N- | | | | | 001649-08-7 |  | 1,2-Dichloro-1,1-difluoroethane |  | 0134237-39-1 |  | HCFC 232 |  | 094133-90-1 |  | 1-Propanesulfonic acid, 3-[13-(dimethyla | | | | | 001649-08-7 |  | HCFC-132b |  | 0134237-40-4 |  | HCFC 233 |  | 098999-57-6 |  | Sulfonamides, C7-8-alkane, perfluoro, N- | | | | | 001652-63-7 |  | 1-Propanaminium, 3-[[(heptadecafluoroo |  | 0134237-41-5 |  | HCFC 235 |  | 117806-54-9 |  | 1-Heptanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 | | | | | 001689-84-5 |  | Bromoxynil |  | 0134237-42-6 |  | HCFC 242 |  | 127133-66-8 |  | 2-Propenoic acid, 2-methyl-, polymers wit | | | | | 001689-99-2 |  | Bromoxynil octanoate |  | 0134237-43-7 |  | HCFC 243 | | 129813-71-4 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 001691-99-2 |  | 1-Octanesulfonamide, N-ethyl-1,1,2,2,3.3,4 |  | 0134237-44-8 |  | HCFC 253 |  | 132207-32-0 |  | Asbestos compounds | | | | | 001717-00-6 |  | 1,1-Dichloro-1-fluoroethane |  | 0134237-45-9 |  | HCFC 261 |  | 132207-33-1 |  | Asbestos compounds | | | | | 001717-00-6 |  | HCFC-141b |  | 0134308-72-8 |  | HCFC 226 |  | 148240-78-2 |  | Fatty acids, C18-unsatd., timers, 2-[[(hep | | | | | 001746-01-6 |  | 2,3,7,8-Tetrachlorodibenzo-p-dioxin |  | 0134452-44-1 | | CFC 212 |  | 148240-80-6 |  | Fatty acids, C18-unsatd., trimers, 2-[meth | | | | | 001763-23-1 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6 |  | 0134452-44-1 |  | Hexachlorodifluoropropane |  | 148240-82-8 |  | Fatty acids, C18-unsatd., trimers, 2-[meth | | | | | 001937-37-7 |  | C.I. Direct Black 38 |  | 0135401-87-5 |  | CFC 211 | | 148684-79-1 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 002223-93-0 |  | Cadmium stearate |  | 0135401-87-5 |  | Heptachlorofluoropropane |  | 160901-25-7 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 002250-98-8 |  | 1-Octanesulfonamide, N,N,N-[phosphinyl |  | 014650-24-9 |  | 2-Propenoic acid, 2-methyl-, 2-[[(heptade |  | 178094-69-4 |  | 1-Octanesulfonamide, N-[3-(climethyloxid | | | | | 002439-01-2 |  | Chinomethionat |  | 017202-41-4 |  | 1-Nonanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 |  | 178535-22-3 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 002602-46-2 |  | Cl. Direct Blue 6 |  | 017804-35-2 |  | Benomyl |  | 182700-90-9 |  | 1-Octanesulfonamide, 1,1,2,2,3,3,4,4,5,5,6 | | | | | 002795-39-3 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6 |  | 021908-53-2 |  | Mercuric oxide |  | 192662-29-6 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 002837-89-0 |  | 2-Chloro-1,1,1,2-tetrafluoroethane |  | 024448-09-7 |  | 1-Octanesulfonamide, 1,1,2,2,3,3,4,4,5,5,6 |  | 251099-16-8 |  | 1-Decanaminium, N-decyl-N,N-dimethyl- | | | | | 002837-89-0 |  | HCFC-124 |  | 025268-77-3 |  | 2-Propenoic acid, 2-[[(heptadecafluoro |  | 306973-46-6 |  | Fatty acids, linseed-oil, dimers, 2-[[(hepta | | | | | 002991-51-7 |  | Glycine, N-ethyl-N-[(heptadecafluoroocty |  | 029081-56-9 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 |  | 306973-47-7 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 004151-50-2 |  | 1-Octanesulfonamide, N-ethyl-1,1,2,2,3,3,4 |  | 029117-08-6 |  | Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl |  | 306974-19-6 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 004259-43-2 |  | CFC 215 |  | 029255-31-0 |  | CFC 214 |  | 306974-28-7 |  | Siloxanes and Silicones, di-Me, mono(3 | | | | | 004259-43-2 |  | Trichloropentafluoropropane |  | 029255-31-0 |  | Tetrachlortetrafluoropropane |  | 306974-45-8 |  | Sulfonic acids, C6-8-alkane, perfluoro, c | | | | | 007439-97-6 |  | Mercury |  | 029457-72-5 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 |  | 306974-63-0 |  | Fatty acids, C18-unsatd., dimers, 2- [meth | | | | | 007440-41-7 |  | Beryllium |  | 030381-98-7 |  | 1-Octanesulfonamide, N,N-[phosphinico |  | 306975-56-4 |  | Propanoic acid, 3-hydroxy-2-(hydroxymet | | | | | 007440-43-9 |  | Cadmium |  | 031506-32-8 |  | 1-Octanesulfonamide, 1,1,2,2,3,3,4,4,5,5,6 |  | 306975-57-5 |  | Propanoic acid, 3-hydroxy-2-(hydroxymet | | | | | 007487-94-7 |  | Mercuric chloride |  | 033089-61-1 |  | Amitraz |  | 306975-62-2 |  | 2-Propenoic acid, 2-methyl-, dodecyl est | | | | | 007782-86-7 |  | Mercurous nitrate |  | 038006-74-5 |  | 1-Propanaminium, 3-[[(heptadecafluoro |  | 306975-84-8 |  | Poly(oxy-1,2-ethanediyl), .alpha.-hydro-.o | | | | | 007783-35-9 |  | Mercuric sulfate |  | 038850-58-7 |  | 1-Propanaminium, N-(2-hydroxyethyl)-N,N |  | 306975-85-9 |  | 2-Propenoic acid, 2-methyl-, dodecyl est | | | | | 007789-06-2 |  | Strontium chromate |  | 040630-65-7 |  | 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4-non |  | 306976-25-0 |  | 1-Hexadecanaminium, N,N-dimethyl-N-[2 | | | | | 007789-42-6 |  | Cadmium bromide |  | 053404-19-6 |  | Bromacil, lithium salt |  | 306976-55-6 |  | 2-Propenoic acid, 2-methyl-, 2-methylpro | | | | | 007790-79-6 |  | Cadmium fluoride |  | 053469-21-9 |  | Aroclor 1242 | | 306977-10-6 |  | 2-Propenoic acid, 2-methyl-, 2-(dimethyla | | | | | 008001-58-9 |  | Creosote |  | 055120-77-9 |  | 1-Hexanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6, |  | 306977-58-2 |  | 2-Propenoic acid, 2-methyl-, 3-(trimethox | | | | | 010045-94-0 |  | Mercuric nitrate |  | 057589-85-2 |  | Benzoic acid, 2,3,4,5-tetrachloro-6 |  | 306978-04-1 |  | 2-Propenoic acid, butyl ester, polymers w | | | | | 010108-64-2 |  | Cadmium chloride |  | 059071-10-2 |  | 2-Propenoic acid, 2-[ethyl[(pentadecafluo |  | 306978-65-4 |  | Hexane, 1,6-diisocyanato-, homopolymer | | | | | 010124-36-4 |  | Cadmium sulphate |  | 060207-90-1 |  | Propiconazole | | 306979-40-8 |  | Poly(oxy-1,2-ethanediyl), .alpha.-[2-(methy | | | | | 010415-75-5 |  | Mercurous nitrate |  | 061660-12-6 |  | 1-Octanesulfonamide, N-ethyl-1,1,2,2,3,3,4 |  | 306980-27-8 |  | Sulfonamides, C4-8-alkane, perfluoro, N | | | | | 011096-82-5 |  | Aroclor 1260 |  | 067584-42-3 |  | Cyclohexanesulfonic acid, decafluoro(pe |  | N/A |  | Cadmium Compounds | | | | | 011097-69-1 |  | Aroclor 1254 |  | 067906-42-7 |  | 1-Decanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 |  | N/A |  | CFC 12/1-IFC 152a, 73.8/26.2 wt % | | | | | 011104-28-2 |  | Aroclor 1221 |  | 067969-69-1 |  | 1-Octanesulfonamide, N-ethyl-1,1,2,2,3,3,4 |  | N/A |  | CFC 12/HCFC 22, 25.0/75.0 wt % | | | | | 011141-16-5 |  | Aroclor 1232 |  | 068156-01-4 |  | Cyclohexanesulfonic acid, nonafluorobis |  | N/A |  | HCFC 22/CFC 115, 48.8/51.2 wt % | | | | | 012172-73-5 |  | Asbestos compounds |  | 068298-62-4 |  | 2-Propenoic acid, 2-[butyl[(heptadecafluo |  | N/A |  | CFC 13/HCFC 23, 59.9/40.1 wt % | | | | | 0125426-39-3 |  | CFC 217 |  | 068329-56-6 |  | 2-Propenoic acid, eicosyl ester, polymer |  | N/A |  | HFC 32/CFC 115, 48.2/51.8 wt % | | | | | 0125426-39-3 |  | Chloropentafluoropropane |  | 068541-80-0 |  | 2-Propenoic acid, polymer with 2-[ethyl[(h |  | N/A |  | Glycol Ethers | | | | | 012672-29-6 |  | Aroclor 1248 |  | 068555-90-8 |  | 2-Propenoic acid, butyl ester, polymer w |  | N/A |  | Mercury Compounds | | | | | 012674-11-2 |  | Aroclor 1016 |  | 068555-91-9 |  | 2-Propenoic acid, 2-methyl-, 2-[ethyl[(hept |  | N/A |  | Polybrominated Biphenyls (PBBs) | | | | | 0127564-83-4 |  | HCFC 234 |  | 068555-92-0 |  | 2-Propenoic acid, 2-methyl-, 2-[[(heptad |  | |  | | | | | | 0134190-48-0 |  | HCFC 231 |  | 068586-14-1 |  | 2-Propenoic acid, 2-[[(heptadecafluoroo |  | |  | | | | | | 0134190-49-1 |  | HCFC 241 |  | 068608-14-0 |  | Sulfonamides, C4-8-alkane, perfluoro, N |  | |  | | | | | | 0134190-51-5 |  | HCFC 251 |  | 068649-26-3 |  | 1-Octanesulfonamide, N-ethyl-1,1,2,2,3,3 |  | |  | | | | | | 0134190-52-6 |  | HCFC 252 |  | 068867-60-7 |  | 2-Propenoic acid, 2-[[(heptadecafluoroo |  | |  | | | | | | 0134190-53-7 |  | HCFC 262 |  | 068867-62-9 |  | 2-Propenoic acid, 2-methyl-, 2-[ethyl[(hep |  | |  | | | | | | 0134190-54-8 |  | HCFC 271 |  | 068891-96-3 |  | Chromium, diaquatetrachloro[.mu.-[N |  | |  | | | | | | 0134237-31-3 |  | CFC 213 |  | 068909-15-9 |  | 2-Propenoic acid, eicosyl ester, polymer |  | |  | "
"Name 068259-10-9 |  | 1-Butanesulfonic acid, 1,1,2,2,3,3,4,4,4- |  | 068555-81-7 |  | 1-Propanaminium, N,N,N-trimethyl-3-[[(pent |  | 070225-26-2 |  | 1-Propanaminium, 3-[[(heptadecafluorooc | | | | | 068259-12-1 |  | 1-Nonanesulfonic acid, 1,1,2,2,3,3,4,4,5 |  | 068568-54-7 |  | Benzoic acid, 2,3,4,5-tetrachloro-6-[[[3-[[(no |  | 070248-52-1 |  | 1-Propanaminium, N,N,N-trimethyl-3-Rtri | | | | | 068259-14-3 |  | 1-Heptanesulfonamide, 1,1,2,2,3,3,4,4,5 |  | 068568-77-4 |  | 2-Propenoic acid, 2-methyl-, 2-[ethyl[(heptai |  | 070657-70-4 |  | 2-Methoxypropyl acetate | | | | | 068259-15-4 |  | 1-Hexanesulfonamide, 1,1,2,2,3,3,4,4,5 |  | 068608-13-9 |  | Sulfonamides, C4-8-alkane, perfluoro, Nett |  | 070776-36-2 |  | 2-Propenoic acid, 2-methyl-, octadecyl est | | | | | 068259-38-1 |  | Poly[oxy(methyl-1,2-ethanediyl)], .alpha |  | 068758-55-4 |  | 2-Propenoic acid, 2-[methyl[(2,2,3,3,4,4,5,5 |  | 070900-40-2 |  | 2-Propenoic acid, 2-methyl-, 2-[[[[5-[[[4-[[( | | | | | 068259-39-2 |  | Poly[oxy(methyl-1,2-ethanediyl)], .alpha |  | 068758-56-5 |  | 2-Propenoic acid, 2-[methyl[(2,2,3,3,4,4,5,5 |  | 071342-77-3 |  | TBBA carbonate oligomer | | | | | 068298-06-6 |  | 2-Propenoic acid, 2-[ethyl[(undecafluorc |  | 068758-57-6 |  | 1-Tetradecanesulfonyl chloride, 3,3,4,4,5,5, |  | 071463-74-6 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5, | | | | | 068298-07-7 |  | 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4- |  | 068784-73-6 |  | 2-Propenoic acid, 2-methyl-, 2-[methyl[(.gar |  | 071463-78-0 |  | Phosphonic acid, [3-[ethyl[(heptadecafluor | | | | | 068298-08-8 |  | 1-Pentanesulfonamide, 1,1,2,2,3,3,4,4,E |  | 068797-76-2 |  | 2-Propenoic acid, 2-methyl-, 2-ethylhexyl es |  | 071463-79-1 |  | Phosphonic acid, [3-[ethyl[(pentadecafluor | | | | | 068298-09-9 |  | 1-Hexanesulfonamide, 1,1,2,2,3,3,4,4,5 |  | 068815-72-5 |  | Benzoic acid, 2,3,4,5-tetrachloro-6-[[[3-[[(triC |  | 071463-80-4 |  | Phosphonic acid, [3-[ethyl[(heptadecafluor | | | | | 068298-10-2 |  | 1-Heptanesulfonamide, 1,1,2,2,3,3,4,4,E |  | 068877-32-7 |  | 2-Propenoic acid, 2-methyl-, 2-[ethylKheptat |  | 071463-81-5 |  | Phosphonic acid, [3-[ethyl[(pentadecafluor | | | | | 068298-11-3 |  | 1-Propanaminium, 3-[[(heptadecafluoroc |  | 068891-97-4 |  | Chromium, diaquatetrachloro[.mu.-[N-ethyl- |  | 071487-20-2 |  | 2-Propenoic acid, 2-methyl-, methyl ester, | | | | | 068298-12-4 |  | 1-Butanesulfonamide, 1,1,2,2,3,3,4,4,4- |  | 068891-98-5 |  | Chromium, diaquatetrachloropnu.-[N-ethyl- |  | 072276-05-2 |  | 2-Propenoic acid, 2-[[(3,3,4,4,5,5,6,6,7,7, | | | | | 068298-13-5 |  | 1-Pentanesulfonamide, 1,1,2,2,3,3,4,4,E |  | 068891-99-6 |  | Chromium, diaquatetrachloro[.mu.-[N-ethyl- |  | 072276-06-3 |  | 2-Propenoic acid, 2-[methyl[(3,3,4,4,5,5,6, | | | | | 068298-60-2 |  | 2-Propenoic acid, 2-[butyl[(pentadecaflu |  | 068900-97-0 |  | Chromium, diaquatetrachloro[snu4N-ethyl- |  | 072276-07-4 |  | 2-Propenoic acid, 2-[methyl[(3,3,4,4,5,5,6, | | | | | 068298-78-2 |  | 2-Propenoic acid, 2-methyl-, 2-[[[[5-[[[2-[ |  | 068957-31-3 |  | Glycine, N-ethyl-N-[(undecafluoropentyl)sulf |  | 072276-08-5 |  | 2-Propenoic acid, 2-[methyl[(3,3,4,4,5,5,6, | | | | | 068298-79-3 |  | Poly(oxy-1,2-ethanediyl), ,alpha.-[2-[eth |  | 068957-32-4 |  | Glycine, N-ethyl-Nitridecafluorohexyl)sulfo |  | 072480-32-1 |  | 2-Propenoic acid, 2-(methylamino)ethyl e | | | | | 068298-80-6 |  | Poly(oxy-1,2-ethanediyl), .alpha.[2-[eth |  | 068957-33-5 |  | Glycine, N-ethyl-N-[(nonafluorobutyl)sulfony |  | 072785-08-1 |  | 1-Propanesulfonic acid, 3-[[3-(dimethylami | | | | | 068298-81-7 |  | Poly(oxy-1,2-ethanediyl), .alpha.-[2-[eth |  | 068957-53-9 |  | Glycine, N-ethyl-N-[(tridecafluorohexyl)sulfo |  | 073018-93-6 |  | 2-Propenoic acid, 2-methyl-, 2-ethylhexyl | | | | | 068298-89-5 |  | 1-Heptanesulfonamide, 1,1,2,2,3,3,4,4,E |  | 068957-54-0 |  | Glycine, N-ethyl-N-Kpentadecafluoroheptyl): |  | 073019-19-9 |  | Benzamide, 4-[[4-R[2-[[(heptadecafluoro 1,3- | | | | | 068299-19-4 |  | Benzenesulfonic acid, Enonafluorobuty |  | 068957-55-1 | | 1-Propanaminium, N,N,N-trimethyl-3-[[(und( |  | 073019-20-2 |  | Benzenedicarboxamide, N3-[2-[[(hept. | | | | | 068299-20-7 |  | Benzenesulfonic acid, [[[(undecafluoropi |  | 068957-57-3 |  | 1-Propanaminium, N,N,N-trimethyl-3-[[(undc |  | 073019-28-0 |  | 2-Propenoic acid, 2-[[(heptadecafluorooc | | | | | 068299-21-8 |  | Benzenesulfonic acid, [[[(tridecafluorohE |  | 068957-58-4 |  | 1-Propanaminium, N,N,N-trimethyl-3-[[(tride |  | 073038-33-2 |  | 2-Propenoic acid, 2-[[(heptadecafluorooc | | | | | 068299-29-6 |  | Benzenesulfonic acid, ar-[[[(pentadecafl |  | 068957-59-5 |  | 1-Butanesulfonamide, N-[3-(dimethylamino) |  | 073275-59-9 |  | 2-Propenoic acid, 2-[[(heptadecafluorooc | | | | | 068299-39-8 |  | 2-Propenoic acid, 2-methyl-, 4-[[(heptad |  | 068957-60-8 |  | 1-Pentanesulfonamide, N-[3-(dimethylaminc |  | 073772-33-5 |  | 1-Hexanesulfonamide, N-[3-(dimethylamin | | | | | 068310-02-1 |  | 1-Heptanesulfonamide, N-butyl-1,1,2,2,: |  | 068957-61-9 |  | 1-Hexanesulfonamide, N-[3-(dimethylamino |  | 073772-34-6 |  | 1-Hexanesulfonamide, N-[3-(dimethylamin | | | | | 068310-17-8 |  | Poly[oxy(methyl-1,2-ethanediyl)], .alpha |  | 068957-62-0 |  | 1-Heptanesulfon am ide, N-ethyl-1,1,2,2,3,3,, |  | 077402-03-0 |  | methyl acrylamidomethoxyacetate (contai | | | | | 068310-18-9 |  | Poly[oxy(methyl-1,2-ethanediyl)], .alpha |  | 068957-63-1 |  | Glycine, N-ethyl-N-[(pentadecafluoroheptyl) |  | 077402-05-2 |  | methyl acrylamidoglycolate (containing ?. | | | | | 068310-75-8 |  | 1-Propanaminium, 3-[[(heptadecafluoroc |  | 068958-60-1 |  | Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl[(p |  | 080387-97-9 |  | 2-ethylhexyl 3,5-bis(1,1-dimethylethyl)-4- | | | | | 068318-34-3 |  | Cyclohexanesulfonyl fluoride, decafluorc |  | 068988-52-3 |  | 2-Propenoic acid, 2-methyl-, C4-8-alkyl este |  | 085136-74-9 |  | 6-hydroxy-1-(3-isopropoxypropyl)-4-meth | | | | | 068318-36-5 |  | 1-Propanaminium, 3-[(carboxymethyl)[(t |  | 068988-534 | | 2-Propenoic acid, 2-methyl-, C4-18-alkyl es |  | 085509-19-9 |  | Flusilazole | | | | | 068391-09-3 |  | Sulfonic acids, C6-12-alkane, perfluoro, |  | 068988-54-5 |  | 2-Propenoic acid, 2-methyl-, C7-8-alkyl este |  | 088671-89-0 |  | Myclobutanil | | | | | 068541-01-5 |  | Benzoic acid, 2,3,4,5-tetrachloro-6-[[[3-[ |  | 068988-55-6 |  | 2-Propenoic acid, 2-methyl-, C7-18-alkyl es |  | 095590-48-0 |  | 2-Propenoic acid, 2-methyl-, 3-(trimethoxy | | | | | 068541-02-6 |  | Benzoic acid, 2,3,4,5-tetrachloro-6-[[[3-[ |  | 069409-94-5 |  | N-(2-Chloro-4-(trifluoromethyl)phenyl)-DL-v |  | P-88-2106 |  | TBBA-diglycidyl ether (epoxy oligomer) | | | | | 068555-68-0 |  | Glycine, N-ethyl-N-[(nonafluorobutyl)sull |  | 069409-94-5 |  | Fluvalinate |  | N/A |  | Antimony Compounds | | | | | 068555-69-1 |  | Glycine, N-ethyl-N-[(undecafluoropentyl |  | 069806-50-4 |  | Fluazifop butyl |  | N/A |  | Arsenic Compounds | | | | | 068555-70-4 |  | Glycine, N-ethyl-N-[(tridecafluorohexyl)s |  | 069882-11-7 |  | Poly(dibromophenylene oxide) (PDBPO) |  | N/A |  | Beryllium Compounds | | | | | 068555-71-5 |  | Glycine, N-ethyl-N-Dentadecafluorohep |  | 070225-14-8 | | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6, |  | N/A |  | Chromium Compounds | | | | | 068555-72-6 |  | 1-Pentanesulfonamide, N-ethyl-1,1,2,2, |  | 070225-14-8 |  | 1-Octanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6, |  | N/A |  | Inorganic Cyanide Compounds | | | | | 068555-73-7 |  | 1-Heptanesulfonamide, N-ethyl-1,1,2,2, |  | 070225-15-9 |  | 1-Heptanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,E |  | N/A |  | Lead Compounds | | | | | 068555-74-8 |  | 1-Pentanesulfonamide, 1,1,2,2,3,3,4,4,5 |  | 070225-16-0 |  | 1-Hexanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6 |  | N/A |  | Nickel Compounds | | | | | 068555-75-9 |  | 1-Hexanesulfonamide, 1,1,2,2,3,3,4,4,5 |  | 070225-17-1 |  | 1-Pentanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,f |  | N/A |  | Selenium Compounds | | | | | 068555-76-0 |  | 1-Heptanesuffonam de, 1,1,2,2,3,3,4,4,E |  | 070225-18-2 |  | 1-Butanesulfonic acid, 1,1,2,2,3,3,4,4,4-non |  | N/A |  | Thallium Compounds | | | | | 068555-77-1 |  | 1-Butanesulfonamide, N-[3-(dimethylam |  | 070225-20-6 | | 1-Propanaminium, N,N,N-trimethyl-3-[[(pent |  | N/A |  | | | | | | 068555-78-2 |  | 1-Pentanesulfon amide, N-[3-(dimethylar |  | 070225-22-8 |  | 1-Propanamini um, N,N,N-trimethyl-3-[[(none |  | N/A |  | | | | | | 068555-79-3 |  | Glycine, N-ethyl-N-Rundecafluoropentyl) |  | 070225-24-0 |  | 1-Propanaminium, N,N,N-trimethyl-3-[[(unde |  | N/A |  | "
|  | |  | | | | | | | | | ---|---|---|---|---|---|---|---|--- Description of Service Call (including leak detection result if applicable):    THIS FORM NEEDS TO BE FILLED OUT COMPLETELY AND TECHNICIAN MUST HAVE THE EPA CERTIFICATION CARD WITH HIM IN ORDER TO PERFORM WORK ON THE REFRIGERANT SIDE OF THE EQUIPMENT.
"Description 1 |  | Declare intent and initiate process to remove or relocate equipment. Enter service request for tool removal, if applicable. Obtain and complete the #12MAZ00153B001, Equipment Decommissioning Plan, prior to any decontamination or defacilitization activities. | 2 |  | Determine the steps for proper decontamination and defacilitization for the equipment. Complete the Equipment Decommissioning Plan with the assistance of the Facilities Department, EHS Department, and personnel who will be performing the decommissioning or relocation. Prior to any decontamination or defacilitization activities. | 3 |  | Obtain approval of the Equipment Decommissioning Plan from personnel specified on the form. Upon completion of the Equipment Decommissioning Plan. | 4 |  | Install Equipment Removal Tag sticker on equipment/tool to be removed. Upon completion of the Equipment Decommissioning Plan. | 5 |  | Affix the #12MAZ00153B002, Equipment Decommissioning Checklist to equipment. Prior to any decontamination or defacilitization activities. | 6 |  | Coordinate the physical equipment decontamination process with appropriate personnel as detailed in the Equipment Decommissioning Plan. Upon approval of the Equipment Decommissioning Plan and after the Equipment Removal Tag sticker and Equipment Decommissioning Checklist have been affixed to the equipment. | 7 |  | Communicate to Project Manager and EHS professional that equipment/tool decontamination process is complete. After equipment/tool is decontaminated and PRIOR to packaging for transport/move. | 8 |  | Have EHS professional inspect/signoff equipment/tool prior to defacilitization work beings to ensure adequate decontamination has been performed on tool. To be completed on all equipment/tools that contained liquid chemistry. Project Manager/Coordinator responsibilities:"
Description 1 |  | Review and approve the Equipment Decommissioning Plan. Upon return of the completed Equipment Decommissioning Plan. | 2 |  | Keep a copy of the Equipment Decommissioning Plan. Upon approval of the Equipment Decommissioning Plan. | 3 |  | Inspect and approve decontamination effectiveness on all tools containing liquid hazardous chemicals. Only for equipment/tools containing liquid hazardous chemicals. | 4 |  | Review tool and issue the final sign off on the Equipment Removal Tag sticker and Equipment Decommissioning Checklist. After equipment is inspected/approved for decommissioning and PRIOR to packaging for transport/move. | 5 |  | File copies of the completed Equipment Decommissioning Plan & Checklist in accordance with document 68ASA66128B EHS record document. Upon completion of Equipment Removal sign-off process. 
"4.2 | EHS Management Review Process ---|--- The management review shall assess the continuing suitability, adequacy and effectiveness of the EHS Management System. The management review shall take into account assessment results, changing processes, products, regulatory constraints, and the commitment to continual EHS improvement. The management review shall address the possible need for changes to the organizations policy, goals and other programs, which address the elements of the sites EHS Management System. Inputs to management review shall include:"
"EHS Goals have been established and are maintained by each site. This procedure is outlined in control document 12MAZ00106B, EHS Goals& Management Review. When establishing and reviewing goals, consideration is given to legal and other requirements, significant environmental aspects, occupational health and safety risks, technological options and financial, operational and business requirements, and the views of interested parties. The site shall establish one Improvement in environmental performance goal at a minimum. The goals shall be consistent and supportive of the corporations goals and EHS policies and measurable where practicable. The EHS goals shall be integrated into the operations overall goals. The EHS goals are established at each relevant function and level of the operation, where appropriate."
"Procedure. The assessment procedure covers scope, frequency and methodologies, and responsibilities for planning and conducting the assessment and reporting results and maintaining associated records. Results will be provided to the site management team, and site and corporate EHS management. The assessors are independent of the program to ensure objectivity and the impartiality of the assessment process. For issues identified, a written corrective action plan will be developed in accordance with the procedure defined in Section5.2."
"Description AZ Sites |  | Chandler and Tempe Arizona sites EHS Manager |  | A person with responsibilities over Environmental Health and Safety Department EHS Professional |  | Individual(s) assigned to EHS activities and who by education and experience are qualified to make EHS decisions EHS Program/System Champion |  | EHS professional responsible for an EHS program Facilities Engineering Manager |  | A person responsible for facilities engineering and CAD, functions Facilities Operations and Maintenance Manager |  | A person responsible for facilities operation and maintenance functions Key Business Partner |  | Freescale employees and contractors outside of the EHS Organization Management Team |  | Management team comprised of organizational managers capable of setting/defining organizational goals and priorities and allocation of resources to support those goals and objectives Pollution Prevention |  | Use of processes, practices, techniques, materials, products, services or energy that avoid, reduce or control (separately or in combination) the creation, emission or discharge of any type of pollutant or waste in order to reduce adverse environmental impacts. This may include recycling, treatment, process changes, control mechanisms, energy or resource efficiency, and material substitution Site Services |  | An organization consists of Facilities, Project Management, and EHS "
"4.5 | Air Pollution Emission Control ---|--- Freescale AZ EHS utilizes the best practical control technologies to minimize emissions in accordance with federal, state, or local regulations and permit conditions. Control technology selection/considerations include; capital and operational cost, control efficiency, physical space, applicable regulatory requirements. Where required, air emissions are controlled to levels mandated by each sites air permit, and in certain operations no physical controls may be employed or required. To ensure the continued efficient operation of control equipment and abatement of air emissions, in accordance with local regulatory requirements, Operations and Maintenance (O&M) Plans are developed and implemented when required. Approved O&M Plans and associated records of compliance are maintained in accordance with control document #12MWS10510D, Records Management Procedure. Non-conformances with O&M Plan limits and maintenance intervals are addressed in accordance with control document #12MAZ00128B, Non-Conformance and Corrective& Preventive Action as well as control document #12MAZ00132B, Regulatory and Operational Reporting as needed. Equipment used to monitor and measure performance of control devices are calibrated, where applicable, in accordance with control document #12MAZ00127B, EHS Monitoring, Measurement and Calibration and AZ Site Services control document #12MSA10598D, AZSS Calibration of Environmental Compliance Monitoring Equipment."
|  | Changed name of ancillary document from Identification and Characterization Log to Waste Characterization Guidelines. Added additional sources of waste stream characterization. Modified sections 3.0 and 5.0 to include current documents and records. Modified section 4.8. Minor format changes made throughout the document. Document revised by B. Johnson and Hana Dostalova |  | J Lund |  | 30 Sep 05 | | | J
"(C) Tenant shall pay all Additional Rent within 30 days after being billed therefor by Landlord. However, Landlord may, at its discretion, (a)make from time to time during the Term a reasonable estimate of the Additional Rent which may become due for any year, (b)require the Tenant to pay to the Landlord such Additional Rent in equal installments at the time and in the manner that the Tenant is required hereunder to pay monthly installments of Base Rent, and (c)at the Landlords reasonable discretion, increase or decrease from time to time during such year the amount initially estimated for such year, all by giving the Tenant written notice thereof. In such event, the Landlord shall cause the actual amount of such Additional Rent to be calculated, and the Tenant or the Landlord shall within 30 days pay to the other the amount of any deficiency or overpayment, whichever the case may be."
"3.09 Landlord shall maintain books and records of all Operating Costs and shall permit Tenant to audit Landlords statements for any annual period no earlier than April1 of the following year for any previous calendar year and provided that Tenant has paid actual Percentage of Operating Costs in any previous year during Tenants lease term. If Tenant elects to audit such books and records, Landlord shall reasonably cooperate with Tenant, and any deficiency or overpayment disclosed by such audit shall be promptly paid or refunded the case may be. To the extent that an audit discloses calculation errors or misstatements which affect prior years, an expense adjustment will be made which will reflect all years affected by such errors. If any such audit discloses that the total Operating Costs billed to Tenant were overstated by more than 5% of the total actual Operating Costs, Landlord shall reimburse Tenant for the reasonable costs of such audit."
"7.01 Ordinary Services. During the Business Hours, Landlord shall provide heating and air-conditioning to the Premises, in the appropriate seasons of the year, as necessary tin Landlords judgment) for the normal use and occupancy of the Premises. In addition, Landlord shall provide (a)electricity and water suitable for the use of the Premises in accordance with the provisions of 4.01, (b)automatic elevator service within the Building and (c)janitorial service and trash removal service. All such services shall be an Operating Cost of the Building for which Tenant pays their Percentage above the Base Year as defined in Article III above. Business Hours shall mean 7:00 a.m. to 6:00 p.m. Monday through Friday and closed on Saturday, Sunday and Building observed holidays, but Tenant shall have access at all times. Building Hours shall be subject to change by Landlord with sufficient notice of the new Business Hours provided in writing to Tenant, however, in no event shall the Building Hours begin later then 9:00am or end earlier than 5:00pm Monday through Friday and Building observed holidays."
"7.02 Extraordinary Services. The Landlord shall not be obligated to provide to or for the benefit of the Premises any of the services referred to in the provisions of 7.01 above other than during the Business Hours referred to therein. lf the Tenant requests such services to be continued during extended hours, Tenant shall pay to the Landlord as Additional Rent the amount from time to time charged by the Landlord for such extended service, such amount to be calculated as a function of the costs to provide such services during extended hours and the number of tenants sharing same at the time requested."
"In the event that Landlord is requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Tenant financial statements, Landlord agrees that it will provide Tenant with prompt notice of such request(s). Without prejudice to the rights and remedies otherwise available to Tenant, Tenant will be entitled to equitable relief by way of injunction if Landlord or any of its employees, agents, consultants or representatives breach or threaten to breach any of the provisions of this Section."
"Enhancement (unless a renewal or replacement Credit Enhancement is provided during said ten (10)day period) in which event Landlord shall retain said money as a cash security deposit hereunder. Tenant acknowledges and agrees that Landlord may collaterally assign the Credit Enhancement to Landlords Mortgagee and such Mortgagee will have the same rights to draw on the Credit Enhancement as Landlord has pursuant to this Lease. Any draw or other action in regard to the Credit Enhancement taken by Landlords Mortgagee shall be deemed, for purposes of this Lease, as a draw or other action taken by Landlord. Landlord shall assign the Credit Enhancement to any successor in interest to Landlords interest in this Lease."
"including but not limited to attorneys fees and court costs. All such amounts shall be due and payable immediately upon demand by Landlord and shall bear interest at 15%per annum until paid. Furthermore, at Landlords option, Tenant shall be obligated to pay, in lieu of item (b)above in this  14.04, an amount (the Substitute Amount) which is equal to (i)the present value (calculated using a rate equal to the yield on the 10-year United States Treasury as most recently published in the Wall Street Journal at the time of such calculation) of all Rent which would become due during the remainder of the Term, including all Additional Rent which shall be deemed to continue and increase over such remainder of the Term at the average rate of increase occurring over the then-expired portion of the Term, with such present value to be determined by discounting at an annual rate of interest which is equal to the bond-equivalent yield for the most recent auction of U.S. Treasury Bills with a 1-year maturity less (ii)the actual net rent collected by Landlord from successor Tenant for the Premises for the remainder of the Term. Any suit or action brought by Landlord to collect any such liquidated damages shall not in any manner prejudice any other rights or remedies of Landlord hereunder."
"17.15 Parking. The parking ratio of the building is approximately 4.1:1000. Landlord shall provide the Tenant with ten (10)covered reserved parking space at no additional charge for the term of the lease. All uncovered unreserved spaces shall be available on a first come, first serve basis. Additional surface covered parking stalls may be available to Tenant at a charge of $35.00 per stall per month on a first come first serve basis."
"(10)days to select one of the three (3)arbitrators proposed by AAA to be the second arbitrator; and, if he/they should fail to select such arbitrator by such time, the AAA shall select, within fifteen (15) days thereafter, one of the three (3)arbitrators it had proposed as the second arbitrator. The two (2)arbitrators so appointed shall jointly appoint the third and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second arbitrator. If the third arbitrator has not been appointed within the time limit specified herein, then the AAA shall provide a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by the AAA in accordance with a listing, striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause."
"(9) Intended Beneficiaries. This Section6.1 is intended to benefit and be enforceable by the shareholders, members, direct and indirect parents, trustees, directors, officers, managers (including The RMR Group LLC or its successor), agents or employees of any party and the parties and shall be binding on the shareholders of any party and the parties, as applicable, and shall be in addition to, and not in substitution for, any other rights to indemnification or contribution that such individuals or entities may have by contract or otherwise."
"(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under Lease No.5, without the prior written consent of the Secured Party. Except as permitted under Lease No.5, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party."
"(i) with respect to the General Intangibles to ask for, demand, collect, receive, compound and give acquittance therefor or any part thereof, to extend the time of payment of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any thereof, to exercise and enforce any rights and remedies in respect thereof, and to file any claims, commence, maintain or discontinue any actions, suits or other proceedings deemed by the Secured Party necessary or advisable for the purpose of collecting or enforcing payment and performance thereof;"
"(i) the Secured Party may bid for and purchase the property being sold and, upon compliance with the terms of sale, may hold, retain and possess and dispose of such property in its own absolute right without further accountability, and may, in paying the purchase money therefor, deliver any instruments evidencing the Obligations or agree to the satisfaction of all or a portion of the Obligations in lieu of cash in payment of the amount which shall be payable thereon, and such instruments, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Secured Party after being appropriately stamped to show partial payment;"
"11.1 Disputes. Any disputes, claims or controversies between the parties (a)arising out of or relating to this Agreement, or (b)brought by or on behalf of any shareholder of any party or a direct or indirect parent of a party (which, for purposes of this Section11, shall mean any shareholder of record or any beneficial owner of shares of any party, or any former shareholder of record or beneficial owner of shares of any party), either on his, her or its own behalf, on behalf of any party or on behalf of any series or class of shares of any party or shareholders of any party against any party or any member, trustee, officer, manager (including The RMR Group LLC or its successor), agent or employee of any party, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration provision, or the declarations of trust, limited liability company agreements, charters, bylaws or other governing documents of any party hereto (all of which are referred to as Disputes), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules(the Rules) of the American Arbitration Association (AAA) then in effect, except as those Rulesmay be modified in this Section11. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against trustees, officers or managers of any party and class actions by a shareholder against those individuals or entities and any party. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party against another party. For purposes of this Section11, the term party shall include any direct or indirect parent of a party."
"WHEREAS, [], a [], as landlord (Landlord), and Sublandlord, as tenant, are parties to that certain Master Lease Agreement (Lease No.5), of even date herewith, as amended from time to time (as so amended, the Lease), pursuant to which Landlord leases to Sublandlord and Sublandlord leases from Landlord the Leased Property, as more particularly described in the Lease, which Leased Property includes that certain Property related to the parcel of land described on ExhibitA attached hereto and made a part hereof (the Subleased Property); and"
"(e) Arbitration Award. In rendering an award or decision (the Arbitration Award), the arbitrators shall be required to follow the laws of the State of Maryland. Any arbitration proceedings or Arbitration Award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. The Arbitration Award shall be in writing and may, but shall not be required to, briefly state the findings of fact and conclusions of law on which it is based."
"3.3 Validity of Agreement. Each Subtenant Guarantor has duly and validly executed and delivered this Guaranty; this Guaranty constitutes the legal, valid and binding obligation of such Subtenant Guarantor, enforceable against such Subtenant Guarantor in accordance with its terms, except as the enforceability thereof may be subject to bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors rights generally and subject to general equitable principles, regardless of whether enforceability is considered in a proceeding at law or in equity; and the execution, delivery and performance of this Guaranty have been duly authorized by all requisite action of such Subtenant Guarantor and such execution, delivery and performance by such Subtenant Guarantor will not result in any breach of the terms, conditions or provisions of, or conflict with or constitute a default under, or result in the creation of any lien, charge or encumbrance upon any of the property or assets of such Subtenant Guarantor pursuant to the terms of, any indenture, mortgage, deed of trust, note, other evidence of indebtedness, agreement or other instrument to which it may be a party or by which it or any of its property or assets may be bound, or violate any provision of law, or any applicable order, writ, injunction, judgment or decree of any court or any order or other public regulation of any governmental commission, bureau or administrative agency."
"3.4 Payment of Expenses. Each Subtenant Guarantor agrees, as principal obligor and not as guarantor only, to pay to Landlord forthwith, upon demand, in immediately available federal funds, all costs and expenses (including reasonable attorneys fees and disbursements) incurred or expended by Landlord in connection with the enforcement of this Guaranty, together with interest on amounts recoverable under this Guaranty from the time such amounts become due until payment at the Overdue Rate. The Subtenant Guarantors covenants and agreements set forth in this Section3.4 shall survive the termination of this Guaranty."
"14. Applicable Law. Except as to matters regarding the internal affairs of Landlord and issues of or limitations on any personal liability of the shareholders and trustees of Landlord for obligations of Landlord, as to which the laws of the state of Landlords organization shall govern, this Guaranty shall be interpreted, construed, applied and enforced in accordance with the laws of The Commonwealth of Massachusetts applicable to contracts between residents of Massachusetts which are to be performed entirely within Massachusetts, regardless of (a)where any such instrument is executed or delivered; or (b)where any payment or other performance required by any such instrument is made or required to be made; or (c)where any breach of any provision of any such instrument occurs, or any cause of action otherwise accrues; or (d)where any action or other proceeding is instituted or pending; or (e)the nationality, citizenship, domicile, principal place of business, or jurisdiction of organization or domestication of any party; or (f)whether the laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction other than The Commonwealth of Massachusetts; or (g)any combination of the foregoing."
"15.6 Costs. Except to the extent expressly provided by this Guaranty or as otherwise agreed by the parties, each party involved in a Dispute shall bear its own costs and expenses (including attorneys fees), and the arbitrators shall not render an award that would include shifting of any such costs or expenses (including attorneys fees) or, in a derivative case or class action, award any portion of a partys award to the claimant or the claimants attorneys. Each party (or, if there are more than two (2)parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, respectively) shall bear the costs and expenses of its (or their) selected arbitrator and the parties (or, if there are more than two (2)parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand) shall equally bear the costs and expenses of the third appointed arbitrator."
"17. Waiver of Rights by Landlord. Neither any failure nor any delay on Landlords part in exercising any right, power or privilege under this Guaranty shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise or the exercise of any other right, power or privilege."
"(b) Except for the lien granted to the Secured Party pursuant to this Agreement and any liens permitted under Lease No.5, each Subtenant is, and as to the Collateral acquired from time to time after the date hereof such Subtenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any Person, except for the security interest of the Secured Party therein, and such Subtenant shall defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Secured Party. The lien granted in this Agreement by such Subtenant to the Secured Party in the Collateral is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Collateral, and no consent is required of any Person to effect such lien which has not been obtained."
"(i) with respect to the General Intangibles to ask for, demand, collect, receive, compound and give acquittance therefor or any part thereof, to extend the time of payment of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any thereof, to exercise and enforce any rights and remedies in respect thereof, and to file any claims, commence, maintain or discontinue any actions, suits or other proceedings deemed by the Secured Party necessary or advisable for the purpose of collecting or enforcing payment and performance thereof;"
"cumulative and in addition to all other rights, however existing or arising. To the maximum extent permitted by applicable law, each Subtenant hereby agrees that it will not invoke any law relating to the marshalling of collateral, which might cause delay in or impede the enforcement of the Secured Partys rights under this Agreement or under any other instrument evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or guaranteed, and, to the maximum extent permitted by applicable law, each Subtenant hereby irrevocably waives the benefits of all such laws."
"Section10. Further Assurances as to Collateral; Attorney-in-Fact. From time to time hereafter, each Subtenant will execute and deliver, or will cause to be executed and delivered, such additional instruments, certificates or documents (including, without limitation, financing statements, renewal statements, mortgages, collateral assignments and other security documents), and will take all such actions as the Secured Party may reasonably request, for the purposes of implementing or effectuating the provisions of this Agreement or of more fully perfecting or renewing the Secured Partys rights with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by such Subtenant which may be deemed to be a part of the Collateral) pursuant hereto and thereto. The Secured Party is hereby appointed the attorney-in-fact, with full power of substitution, of the Subtenants for the purpose of carrying out the provisions of this Agreement and taking any action, including, without limitation, executing, delivering and filing applications, certificates, instruments and other documents and papers with governmental authorities, and executing any instruments, including without limitation financing or continuation statements, deeds to secure debt, mortgages, assignments, conveyances, assignments and transfers which are required to be taken or executed by any Subtenant under this Agreement, on its behalf and in its name which appointment is coupled with an interest, is irrevocable and durable and shall survive the subsequent dissolution, disability or incapacity of such Subtenant."
"11.1 Disputes. Any disputes, claims or controversies between the parties (a)arising out of or relating to this Agreement, or (b)brought by or on behalf of any shareholder of any party or a direct or indirect parent of a party (which, for purposes of this Section11, shall mean any shareholder of record or any beneficial owner of shares of any party, or any former shareholder of record or beneficial owner of shares of any party), either on his, her or its own behalf, on behalf of any party or on behalf of any series or class of shares of any party or shareholders of any party against any party or any member, trustee, officer, manager (including The RMR Group LLC or its successor), agent or employee of any party, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration provision, or the declarations of trust, limited liability company agreements, charters, bylaws or other governing documents of any party hereto (all of which are referred to as Disputes), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules(the Rules) of the American Arbitration Association (AAA) then in effect, except as those Rulesmay be modified in this Section11. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against trustees, officers or managers of any party and class actions by a shareholder against those individuals or entities and any party. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party"
"11.2 Selection of Arbitrators. There shall be three (3)arbitrators. If there are only two (2)parties to the Dispute, each party shall select one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of such parties. If there are more than two (2)parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be, one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of the claimants or the respondents, as the case may be. If either a claimant (or all claimants) or a respondent (or all respondents) fail to timely select an arbitrator then the party (or parties) who has selected an arbitrator may request the AAA to provide a list of three (3)proposed arbitrators in accordance with the Rules(each of whom shall be neutral, impartial and unaffiliated with any party) and the party (or parties) that failed to timely appoint an arbitrator shall have ten (10)days from the date the AAA provides such list to select one of the three (3)arbitrators proposed by AAA. If such party (or parties) fail to select such arbitrator by such time, the party (or parties) who have appointed the first arbitrator shall then have ten (10)days to select one of the three (3)arbitrators proposed by AAA to be the second arbitrator; and, if he/they should fail to select such arbitrator by such time, the AAA shall select, within fifteen (15) days thereafter, one of the three (3)arbitrators it had proposed as the second arbitrator. The two (2)arbitrators so appointed shall jointly appoint the third and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second arbitrator. If the third arbitrator has not been appointed within the time limit specified herein, then the AAA shall provide a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by the AAA in accordance with a listing, striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause."
"Section12. Notices. (a)Any and all notices, demands, consents, approvals, offers, elections and other communications required or permitted under this Agreement shall be deemed adequately given if in writing and the same shall be delivered either in hand, by facsimile with confirmation of transmission by senders machine, or by mail or Federal Express or similar expedited commercial carrier, addressed to the recipient of the notice, postpaid and registered or certified with return receipt requested (if by mail), or with all freight charges prepaid (if by Federal Express or similar carrier)."
"(f) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibitions or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction."
"1.01 Employment Term. The Company agrees to continue to employ Executive, and Executive agrees to be so continually employed, in the capacity of President and Chief Executive Officer of the Company, for a term commencing on the date hereof and ending on the third anniversary of the date hereof; provided, however, that, commencing on the day after the third anniversary of the date hereof and on each one year anniversary thereafter, the term shall automatically be extended for one additional year unless either the Company or Executive gives written notice to the other at least one hundred twenty (120) days before such extension would otherwise occur of the Companys or Executives election not to extend the term; provided, further, that notwithstanding anything to the contrary set forth in this Amended Agreement, this Amended Agreement may be earlier terminated pursuant to the terms hereof. Employment Term as used herein shall mean the duration of Executives employment by or service to the Company, whether in the capacity of an independent contractor or consultant, on an at-will employment basis, or under this Amended Agreement, without giving effect to any extensions thereof not yet effected, and regardless of any change in Executives status or the capacity in which he is employed by or serves the Company."
"2.06 Business Expenses. To the extent that Executives reasonable and necessary expenditures for travel, entertainment and similar items made in furtherance of Executives duties under this Amended Agreement comply with the Companys travel and expense reimbursement policy and are documented as required by the immediately following sentence, the Company shall promptly reimburse Executive for such expenditures. Executive shall document and substantiate all such expenditures, including an itemized list of all expenses incurred, the business purposes for which such expenses were incurred, and all receipts related thereto, and shall submit such items in accordance with Company policy."
"(v) a material breach by the Company of any equity award agreement (whether with respect to stock appreciation rights, RSUs, PSUs or otherwise) by and between the Company and Executive then in effect or the terms of ay Equity Plan incorporated therein, which material breach is not corrected within forty-five (45) days after the date of receipt by the Board"
"(b) During the Restricted Period (as defined below) and subject to Section 6.02(d), Executive shall not, directly or indirectly, except as an employee of the Company, in any capacity for Executive or others, directly or indirectly call on, service, or solicit competing business from clients or prospective clients of the Company or its Affiliates (collectively with the obligations set forth in Section 6.02(a) the Non-Compete Obligations); provided, however, that nothing herein shall prevent Executive from investing as a less than 5% shareholder in securities of any company listed on a national securities exchange or quoted on an automated quotation system."
"(d) The geographic limitation for the Non-Compete Obligations is any state or province (or substantially equivalent designation of a geographic area within a foreign country) (i) in which the Company or its Affiliates provided its products or services or conducted activities during the twenty-four (24) months prior to the termination of the Employment Term, (ii) in which the Company or its Affiliates had plans to provide or contemplated providing its products or services or conducting activities during the twenty-four (24) months prior to the date of termination of the Employment Term, or (iii) in which a customer or client of the Company or its Affiliates is located."
"Notwithstanding the foregoing, the foregoing provisions of this Section 6.04 shall not be construed to prohibit or restrict the manner in which Executive exercises Executives voting rights in respect of equity securities of the Company acquired in a manner that is not a violation of the terms of this Amended Agreement."
"(g) the Restricted Period set forth herein is a material term of this Amended Agreement and the Company is entitled to Executives compliance with the terms of this ARTICLE VI during that full period. Therefore, Executive agrees that the Restricted Period will be tolled during any period of non-compliance by Executive. If the Company must seek injunctive relief or judicial intervention to enforce this Amended Agreement, the Restricted Period set forth herein does not commence until Executive is judged by a court of competent jurisdiction to be in full compliance with this Amended Agreement; and"
"7.02 Representations of the Company. The Company represents and warrants to Executive that it is duly formed and is validly existing under the laws of the State of Texas, that it is fully authorized and empowered by all necessary action to enter into this Amended Agreement and that performance of its obligations under this Amended Agreement will not violate any agreement between it and any other person, firm or other entity."
"8.01 Section 409A. The intent of the parties is that payments and benefits under this Amended Agreement shall comply with or be exempt from Section 409A of the Code and the Treasury regulations and administrative guidance thereunder (collectively, Code Section 409A), and, accordingly, to the maximum extent permitted, this Amended Agreement shall be interpreted to be in compliance therewith. If any provision of this Amended Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A, the Company shall, after consulting with and receiving the approval of Executive, reform such provision in a manner intended to avoid the incurrence by Executive of any such additional tax or interest; provided, however, that the Company shall maintain, to the maximum extent practicable, the original intent and economic benefit to Executive of the applicable provision without violating the provisions of Code Section 409A."
"including that (a) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Amended Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (b) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that this clause (b) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect; (c) Executives right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (d) in no event shall the Companys obligations to make such reimbursements or to provide such in-kind benefits apply later than two (2) years after the termination of this Amended Agreement."
"9.03 Choice of Law, Forum and Consent to Personal Jurisdiction. This Amended Agreement shall be interpreted, construed, and governed by the laws of the State of Texas, regardless of its place of execution or performance. Any cause of action arising between the parties regarding this Amended Agreement shall be brought only in a Texas State Court located in Tarrant County, Texas, or in the U.S. District Court for the Northern District of Texas, Fort Worth division. Executive, by this Section 9.03, consents to personal jurisdiction in any such State or Federal court and waives any entitlement Executive might otherwise have to a transfer of venue under the preferred venue requirements of State or Federal rules of civil procedure rules."
"3.02 Non-released matters. Notwithstanding the foregoing Section 3.01 of this Separation Agreement, the release set forth therein shall not apply to (1) any severance or other benefits due Executive under this Separation Agreement or the Amended Agreement for which Executive has not expressly acknowledged receipt or satisfaction in Section 2.01 of this Separation"
"This Agreement contains all the terms and conditions agreed upon by the parties hereto regarding the subject matter of this Agreement, except as otherwise expressly stated herein. Any prior agreements, promises, negotiations, or representations, either oral or written, relating to the subject matter of this Agreement not expressly set forth in this Agreement are of no force and effect. "
"This Agreement is intended to comply, to the extent applicable, with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A) and shall, to the extent practicable, be construed in accordance with such section. For purposes of this Agreement, each amount to be paid or benefit to be provided will be construed as a separate identified payment for purposes of Section 409A, and any payments that are due within the short term deferral period as defined in Section 409A will not be treated as deferred compensation unless applicable law requires otherwise. "
"Executive is also waiving his right to any monetary recovery if such Claims are pursued on his behalf. Executive confirms that (to his knowledge) Executive has suffered no injuries or occupational diseases in connection with his employment with the Company that may be compensable under any state workers compensation laws. Executive confirms that he does not have any pending claim, charge, or suit against the Releasees or any of their employees in any federal, state, or local court or administrative agency. "
" | (a) | For a period beginning on the Termination Date and ending six months following the Termination Date (the Consulting Period), Mr.De Silva agrees to perform for Endo services related to company business and legal matters as reasonably directed by the Board of Directors of Endo plc (the Board) and/or chief executive officer of Endo (the Services) and commensurate with Mr.De Silvas prior level of position and knowledge. The Parties reasonably expect that the performance of the Services will not require Mr.De Silva to work more than twenty percent (20%)of the average level of services performed by Mr.De Silva during the thirty-six (36)months immediately preceding the Termination Date. All Services will be performed by Mr.De Silva with a level of skill and care generally exercised by others performing the same or similar services. In performing the Services, Mr.De Silva will comply fully with all applicable laws, and all applicable policies of Endo and its affiliates. ---|---|--- "
" | (b) | The Company agrees to promptly reimburse Mr.De Silva for reasonable expenses reasonably incurred by him in connection with his cooperation pursuant to Section7(a) above (including travel expenses at the level of travel permitted by the Employment Agreement and reasonable attorney fees in the event Mr.De Silva reasonably determines that separate legal counsel appropriate). Such reimbursements shall be made as soon as practicable, and in no event later than the calendar year following the year in which such expenses are incurred. ---|---|--- "
"14. | Entire Agreement. This Agreement sets forth the entire agreement between Mr.De Silva and Endo concerning the termination of Mr.De Silvas employment and the provision of consulting services, and, except as otherwise provided herein, this Agreement supersedes any other written or oral promises concerning the subject matter of this Agreement, including, without limitation, those set forth in the Employment Agreement. No modification, waiver or amendment of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by the Chief Executive Officer of Endo plc at such time. ---|--- "
"and each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each of the parties hereto also agrees that any final and unappealable judgment against a party hereto in connection with any action, suit or other proceeding may be enforced in any court of competent jurisdiction, either within or outside of the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment."
"It is understood and agreed that the above-recited consideration is provided by Releasees, and is accepted by Executive in settlement and compromise of disputed claims that he may hold or now have, the validity of which are expressly denied by Releasees, and that the provision of such consideration is not an admission of liability by Releasees. "
"This Agreement and the covenants contained herein shall be binding on and inure to the benefit of Releasees and the assigns, heirs, executors, and administrators of Releasees and the predecessors, successors, and assigns of Releasees and each past or present parent, subsidiary, affiliate, employee, agent, representative, officer, director, insurer, attorney, and stockholder of Releasees. "
"1.42 Government Agencies shall mean any court, agency, authority, board (including, without limitation, environmental protection, planning and zoning), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit of the United States or any State or any county or any political subdivision of any of the foregoing, whether now or hereafter in existence, having jurisdiction over Tenant or any Property, or any portion thereof, or any Facility operated thereon."
"(d) the presence of which on any Property, or any portion thereof, causes or materially threatens to cause an unlawful nuisance upon such Property, or any portion thereof, or to adjacent properties or poses or materially threatens to pose a hazard to such Property, or any portion thereof, or to the health or safety of persons on or about such Property, or any portion thereof; or"
"1.59 Leased Intangible Property shall mean all agreements, service contracts, equipment leases, booking agreements and other arrangements or agreements affecting the ownership, repair, maintenance, management, leasing or operation of the Leased Property, or any portion thereof, to which Landlord is a party; all books, records and files relating to the leasing, maintenance, management or operation of the Leased Property, or any portion thereof, belonging to Landlord; all transferable or assignable permits, certificates of occupancy, operating permits, sign permits, development rights and approvals, certificates, licenses, warranties and guarantees, rights to deposits, trade names, service marks, telephone exchange numbers identified with the Leased Property, and all other transferable intangible property, miscellaneous rights, benefits and privileges of any kind or character belonging to Landlord with respect to the Leased Property."
"1.92 Unsuitable for Its Permitted Use shall mean, with respect to any Facility, a state or condition of such Facility such that (a)following any damage or destruction involving a Facility, (i)such Facility cannot be operated on a commercially practicable basis for its Permitted Use and it cannot reasonably be expected to be restored to substantially the same condition as existed immediately before such damage or destruction, and as otherwise required by Section10.2.4, within twelve (12) months following such damage or destruction or such longer period of time as to which business interruption insurance is available to cover Rent and other costs related to the applicable Property following such damage or destruction, (ii)the damage or destruction, if uninsured, exceeds $1,000,000 or (iii)the cost of such restoration exceeds ten percent (10%) of the fair market value of such Property immediately prior to such damage or destruction, or (b)as the result of a partial taking by Condemnation, such Facility cannot be operated, in the good faith judgment of Tenant, on a commercially practicable basis for its Permitted Use."
"If and to the extent Tenant shall exercise the options, the first Extended Term shall commence on January1, 2029 and expire on December31, 2043 and the second Extended Term shall commence on January1, 2044 and expire on December31, 2058. All of the terms, covenants and provisions of this Agreement shall apply to each Extended Term, except that Tenant shall have no right to extend the Term beyond December31, 2058. If Tenant shall elect to exercise the option to extend the Term for the first Extended Term, it shall do so by giving Landlord Notice thereof not later than December31, 2026, and if Tenant shall elect to exercise its option to extend the Term for the second Extended Term after having elected to extend the Term for the first Extended Term, it shall do so by giving Landlord Notice not later than December31, 2041, it being understood and agreed that time shall be of the essence with respect to the giving of any such Notice. If Tenant shall fail to give any such Notice, this Agreement shall automatically terminate at the end of the Fixed Term or the first Extended Term as applicable and Tenant shall have no further option to extend the Term of this Agreement. If Tenant shall give such Notice, the extension of this Agreement shall be automatically effected"
"(c) Adjustments of Minimum Rent Following Disbursements Under Sections 5.1.2(b), 10.2.3 and 11.2. Effective on the date of each disbursement to pay for the cost of any repairs, maintenance, renovations or replacements pursuant to Sections5.1.2(b), 10.2.3 or 11.2, the annual Minimum Rent shall be increased by a per annum amount equal to the Disbursement Rate times the amount so disbursed. If any such disbursement is made during any calendar month on a day other than the first Business Day of such calendar month, Tenant shall pay to Landlord on the first Business Day of the immediately following calendar month (in addition to the amount of Minimum Rent payable with respect to such calendar month, as adjusted pursuant to this"
"(c) Reconciliation of Additional Rent. In addition, within seventy-five (75) days after the end of each Lease Year (or any portion thereof occurring during the Term), Tenant shall deliver, or cause to be delivered, to Landlord (i)a financial report setting forth the Gross Revenues for each Property for such preceding Lease Year, or portion thereof, together with an Officers Certificate from Tenants chief financial or accounting officer certifying that such report is true and correct, and (ii)a statement showing Tenants calculation of Additional Rent due for such preceding Lease Year, or portion thereof, based on the Gross Revenues set forth in such financial report, together with an Officers Certificate from Tenants chief financial or accounting officer certifying that such statement is true and correct."
"3.2 Late Payment of Rent, Etc. If any installment of Minimum Rent, Additional Rent or Additional Charges (but only as to those Additional Charges which are payable directly to Landlord) shall not be paid within ten (10)days after its due date, Tenant shall pay Landlord, on demand, as Additional Charges, a late charge (to the extent permitted by law) computed at the Overdue Rate on the amount of such installment, from the due date of such installment to the date of payment thereof. To the extent that Tenant pays any Additional Charges directly to Landlord or any Facility Mortgagee pursuant to any requirement of this Agreement, Tenant shall be relieved of its obligation to pay such Additional Charges to the Entity to which they would otherwise be due. If any payments due from Landlord to Tenant shall not be paid within ten (10)days after its due date, Landlord shall pay to Tenant, on demand, a late charge (to the extent permitted by law) computed at the Overdue Rate on the amount of such installment from the due date of such installment to the date of payment thereof."
"9.1 General Insurance Requirements. Tenant shall, at all times during the Term and at any other time Tenant shall be in possession of any Property, or any portion thereof, keep (or cause to be kept) such Property and all property located therein or thereon, insured against the risks and in such amounts as is against such risks and in such amounts as Landlord shall reasonably require and may be commercially reasonable. Tenant shall annually prepare a proposal setting forth the insurance Tenant proposes to be maintained with respect to each Property, and shall submit such proposal to Landlord at least ninety (90) days prior to the expiration of the insurance policy then in effect for Landlords review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of such proposal, such proposal shall be deemed approved."
"12.5 Landlords Right to Cure Tenants Default. If an Event of Default shall have occurred and be continuing, Landlord, after Notice to Tenant (which Notice shall not be required if Landlord shall reasonably determine immediate action is necessary to protect person or property), without waiving or releasing any obligation of Tenant and without waiving or releasing any Event of Default, may (but shall not be obligated to), at any time thereafter, make such payment or perform such act for the account and at the expense of Tenant, and may, to the maximum extent permitted by law, enter upon the Leased Property, or any portion thereof, for such purpose and take all such action thereon as, in Landlords sole and absolute discretion, may be necessary or appropriate therefor. No such entry shall be deemed an eviction of Tenant. All reasonable costs and expenses (including, without limitation, reasonable attorneys fees) incurred by Landlord in connection therewith, together with interest thereon (to the extent permitted by law) at the Overdue Rate from the date such sums are paid by Landlord until repaid, shall be paid by Tenant to Landlord, on demand."
"Any assignment or transfer of Tenants interest under this Agreement shall be subject to such assignees or transferees delivery to Landlord of (a)a Guaranty, which Guaranty shall be in form and substance satisfactory to Landlord in its sole discretion and which Guaranty shall constitute an Incidental Document hereunder; (b)a pledge of the stock, partnership, membership or other ownership interests of such assignee or other transferee to secure Tenants obligations under this Agreement and the Incidental Documents, which pledge shall be in form and substance satisfactory to Landlord in its sole discretion and which pledge shall constitute an Incidental Document hereunder; (c)a security agreement granting Landlord a security interest in all of such assignees or transferees right, title and interest in and to any personal property, intangibles and fixtures (other than accounts receivable) with respect to any Property which is subject to any such assignment or transfer to secure Tenants obligations under this Agreement and the Incidental Documents, which security agreement shall be in form and substance satisfactory to Landlord in its sole discretion and which security agreement shall constitute an Incidental Document hereunder; and (d)in the case of a sublease, an assignment which assigns all of such subtenants right, title and interest in such sublease to Landlord to secure Tenants obligations under this Agreement and the Incidental Documents, which assignment shall be in form and substance satisfactory to Landlord in its sole discretion and which assignment shall constitute an Incidental Document hereunder."
"No subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder (unless Landlord and Tenant expressly otherwise agree that Tenant shall be released from all obligations hereunder), and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the prohibition set forth in this Section16.1. No assignment, subletting or occupancy shall affect any Permitted Use. Any subletting, assignment or other transfer of Tenants interest under this Agreement in contravention of this Section16.1 shall be voidable at Landlords option."
"16.2 Required Sublease Provisions. Any sublease of all or any portion of the Leased Property shall provide (a)that it is subject and subordinate to this Agreement and to the matters to which this Agreement is or shall be subject or subordinate; (b)that in the event of termination of this Agreement or reentry or dispossession of Tenant by Landlord under this Agreement, Landlord may, at its option, terminate such sublease or take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlords option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that neither Landlord nor any Facility Mortgagee, as holder of a mortgage or as Landlord under this Agreement, if such mortgagee succeeds to that position, shall (i)be liable for any act or omission of Tenant under such sublease, (ii)be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, (iii)be bound by any previous modification of such sublease not consented to in writing by Landlord or by any previous prepayment of more than one (1)months rent, (iv)be bound by any covenant of Tenant to undertake or complete any construction of the applicable Property, or any portion thereof, (v)be required to account for any security deposit of the subtenant other than any security deposit actually delivered to Landlord by Tenant, (vi)be bound by any obligation to make any payment to such subtenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the sublease that are performed after the date of such attornment, (vii)be responsible for any monies owing by Tenant to the credit of such subtenant unless actually delivered to Landlord by Tenant, or (viii)be required to remove any Person occupying any portion of the Leased Property; and (c)in the event that such subtenant receives a written Notice from Landlord or any Facility Mortgagee stating that an Event of Default has occurred and is continuing, such subtenant shall thereafter be obligated to pay all rentals accruing under such sublease directly to the party giving such Notice or as such party may direct. All rentals received from such subtenant by Landlord or the Facility Mortgagee, as the case may be, shall be credited against the amounts owing by Tenant under this Agreement and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. An original counterpart of each such sublease and assignment and assumption, duly executed by Tenant and such subtenant or assignee, as the case may be, in form and substance reasonably satisfactory to Landlord, shall be delivered promptly to Landlord and (x)in the case of an assignment, the assignee shall assume in writing and agree to keep and perform all of the terms of this Agreement on the part of Tenant to be kept and performed and shall be, and become, jointly and severally liable with Tenant for the performance thereof and (y)in the case of either an assignment or subletting, Tenant shall remain primarily liable, as principal rather than as surety, for the prompt payment of the Rent and for the performance and observance of all of the covenants and conditions to be performed by Tenant hereunder."
"21.1 Prompt Payment of Indebtedness. Tenant shall (a)pay or cause to be paid when due all payments of principal of and premium and interest on Tenants Indebtedness for money borrowed and shall not permit or suffer any such Indebtedness to become or remain in default beyond any applicable grace or cure period, (b)pay or cause to be paid when due all lawful claims for labor and rents with respect to the Leased Property, (c)pay or cause to be paid when due all trade payables and (d)pay or cause to be paid when due all other of Tenants Indebtedness upon which it is or becomes obligated, except, in each case, other than that referred to in clause (a), to the extent payment is being contested in good faith by appropriate proceedings in accordance with Article8 and if Tenant shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP, if appropriate, or unless and until foreclosure, distraint sale or other similar proceedings shall have been commenced."
"22.1 Disputes. Any disputes, claims or controversies between the parties (a)arising out of or relating to this Agreement, or (b)brought by or on behalf of any shareholder of any party or a direct or indirect parent of a party (which, for purposes of this Article22, shall mean any shareholder of record or any beneficial owner of shares of any party, or any former shareholder of record or beneficial owner of shares of any party), either on his, her or its own behalf, on behalf of any party or on behalf of any series or class of shares of any party or shareholders of any party against any party or any member, trustee, officer, manager (including The RMR Group LLC or its successor), agent or employee of any party, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration provision, or the declarations of trust, limited liability company agreements, charters, bylaws or other governing documents of any party hereto (all of which are referred to as Disputes), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules(the Rules) of the American Arbitration Association (AAA) then in effect, except as those Rulesmay be modified in this Article22. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against trustees, officers or managers of any party and class actions by a shareholder against those individuals or entities and any party. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party against another party. For purposes of this Article22, the term party shall include any direct or indirect parent of a party."
"22.7 Final Judgment. An Arbitration Award shall be final and binding upon the parties thereto and shall be the sole and exclusive remedy between such parties relating to the Dispute, including any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon the Arbitration Award may be entered in any court having jurisdiction. To the"
"fullest extent permitted by law, no application or appeal to any court of competent jurisdiction may be made in connection with any question of law arising in the course of arbitration or with respect to any award made except for actions relating to enforcement of this agreement to arbitrate or any arbitral award issued hereunder and except for actions seeking interim or other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction."
"23.2 No Waiver. No failure by Landlord or Tenant to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a breach thereof, and no acceptance of full or partial payment of Rent during the continuance of any such breach, shall constitute a waiver of any such breach or of any such term. To the maximum extent permitted by law, no waiver of any breach shall affect or alter this Agreement, which shall continue in full force and effect with respect to any other then existing or subsequent breach."
"23.8 Quiet Enjoyment. Tenant shall peaceably and quietly have, hold and enjoy the Leased Property for the Term, free of hindrance or molestation by Landlord or anyone claiming by, through or under Landlord, but subject to (a)any Encumbrance permitted under Article20 or otherwise permitted to be created by Landlord hereunder, (b)all Permitted Encumbrances, (c)liens as to obligations of Landlord that are either not yet due or which are being contested in good faith and by proper proceedings, provided the same do not materially interfere with Tenants ability to operate any Facility and (d)liens that have been consented to in writing by Tenant. Except as otherwise provided in this Agreement, no failure by Landlord to comply with the foregoing covenant shall give Tenant any right to cancel or terminate this Agreement or abate, reduce or make a deduction from or offset against the Rent or any other sum payable under this Agreement, or to fail to perform any other obligation of Tenant hereunder."
"(b) All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of acknowledged receipt, in the case of a notice by telecopier, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day."
"This Agreement is contingent upon and shall become effective immediately prior to the closing of the Transaction. Subject to (i) this Agreement having been duly executed, (ii) this Agreement having become irrevocable in accordance with the terms hereof, and (iii) the consummation of the Transaction (collectively, the Enforceability Conditions) (a) the Company shall pay Employee the amount described on the signature page hereto (the Settlement Amount) in a single lump sum payment, less applicable withholding taxes, upon the closing of the Transaction and (b) the Employment Agreement shall be terminated immediately prior to the closing of the Transaction and shall have no further force and effect other than Employees right to be indemnified, defended and/or held harmless as set forth therein. For the avoidance of doubt, until immediately prior to the consummation of the Transaction as contemplated hereby and by the Merger Agreement (as defined below), the Company shall have no obligation to pay the Settlement Amount and the Employment Agreement shall remain in full force and effect. In the event the Agreement and Plan of Merger, dated as of April 21, 2016, by and among Parent, Merger Sub and the Company (the ""Merger Agreement"") is terminated in accordance with its terms prior to the consummation of the Transaction, this Agreement shall automatically terminate and be of and of no further force and effect, the Company shall have no obligation to pay the Settlement Amount and the Employment Agreement shall not be terminated hereby. ---|---|--- "
"WHEREAS, the Executive is Senior Vice President of Mortgage Investments of the Company, and in such role, the Executive has received and will continue to receive specific trade secrets and confidential information, training and the benefit of established customer relationships relating to the businesses of the Company, which trade secrets and confidential information, training and access to established customer relationships are necessary to enable the Executive to perform the Executives duties and to receive future compensation, and the Executive has played and will continue to play a significant role in the development and management of the businesses of the Company; and"
"Disability shall mean a physical or mental condition of the Executive that, in the good faith judgment of not less than a majority of the Board of Managers, prevents the Executive from being able to perform the services required under this Agreement and that results in the Executive becoming eligible for long-term disability benefits (if such benefits are provided by the Company). If any dispute arises as to whether a Disability has occurred, or whether a Disability has ceased and the Executive is able to resume duties, then such dispute shall be referred to a licensed physician appointed by the president of the Medical Society or similar organization in Washington, D.C., at the request of either party. The Executive shall submit to such examinations and provide information as such physician may request and the determination of such physician as to the Executives physical or mental condition shall be binding and"
"For purposes of this definition, no act or failure to act on the Executives part shall be considered Misconduct if done or omitted to be done by the Executive in good faith and in the reasonable belief that such act or failure to act was in the best interest of the Company or in furtherance of the Executives duties and responsibilities described in Section 2.3."
"Positions and Duties (a) While employed hereunder, the Executive shall serve as Senior Vice President of Mortgage Investments of the Company. As such, the Executive shall have the responsibilities and authorities designated to him by the President and Chief Investment Officer of the Company (the President) or the Board of Managers."
"Target Incentive Payment Plan During the Term, the Company shall maintain and the Executive shall be entitled to participate in an annual incentive payment plan described in greater detail in Exhibit A hereto (the Target Incentive Payment Plan), which will provide for the payment of lump sum cash incentive payments to be made on the schedule set forth in Exhibit A. Under the Target Incentive Payment Plan, the Executive will be eligible to earn target incentive payments (each, a Target Incentive Payment) each year totaling not less than 200% of the Base Salary paid to the Executive during the calendar year to which the Target Incentive Payment relates (the Target Incentive Payment Amount). With regard to each calendar quarter, the Executive will be eligible to earn a Target Incentive Payment of not less than 100% of the Base Salary paid to the Executive during such calendar quarter (the Quarterly Target Incentive Payment Amount)."
"Payment of Accrued Base Salary, Vacation Pay, etc. (a) Promptly upon the Executives Termination Date in the event of the termination of the Executives employment for any reason (including death and Disability), and in no event later than 60 days following the Executives Termination Date, as applicable, the Company shall pay to the Executive (or the Executives estate) a lump sum amount equal to the sum of all (i) unpaid Base Salary earned hereunder prior to the Termination Date and (ii) unused vacation time accrued by the Executive as of the Termination Date to the extent payable under the policy described in Section 3.4. All unpaid benefits earned or vested, as the case may be, by the Executive as of the Termination Date under any and all incentive or deferred compensation plans or programs of the Company shall be paid to the Executive in accordance with the terms of such plans or programs."
"Additional Rights in Connection With Termination by the Executive with Good Reason or by the Company for Other than Misconduct or Disability In the event that the Executive terminates the Executives employment with the Company pursuant to Section 4.1 for Good Reason or the Company terminates the Executives employment with the Company pursuant to Section 4.2 for other than Misconduct or Disability, the Executive shall be entitled to the payments and benefits set forth in this Section 4.5."
"(b) Accelerated Vesting of Prior PIP Awards. To the extent any awards under the AGNC PIP and/or the MTGE PIP granted prior to the date hereof are unvested, such awards shall immediately be vested as of the Termination Date, and distributions in respect of such awards shall be made as soon as practicable (and in all event within 60 days) after the Termination Date."
"In the event that there shall be a Company Managed Fund that does not have publiclytraded equity securities, the Board of Managers will work with the President to make appropriate adjustments to this Section 1 to provide a basis for awarding Target Incentive Payments to the Executive attributable to such Company Managed Fund."
"B. The Companys payment of the Severance Benefits is subject to applicable federal, state, and local taxes and withholding. This Agreement shall be administered and interpreted to maximize the short-term deferral exception to Section 409A of the Code, and Executive shall not, directly or indirectly, designate the taxable year of a payment made under this Agreement. The portion of any payment under this Agreement that is paid within the short term deferral period within the meaning of Treasury Regulation Section 1.409A-1(b)(4) shall be treated as a short term deferral and not aggregated with other plans or payments. Any other portion of the payment that does not meet the short term deferral requirement shall, to the maximum extent possible, be deemed to satisfy the exception from Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) for involuntary"
"B. Executive acknowledges that he has been provided with a period of at least twenty--one (21) days within which to consider, review, and reflect upon the terms of this Agreement and the Affirmation (Consideration Period), during which time he may seek counsel. The Parties agree that any discussions about or changes to this Agreement, whether material or immaterial, will not restart the running of the Consideration Period."
"C. If Executive believes that he is required by law or valid legal process to disclose or discuss the existence or terms of this Agreement, the Confidential Information (as defined in the Employment Agreement), or information concerning the formation, continuation, terms and conditions, or ending of his or any other employees employment with the Company or the business, operations, or personal affairs of the Company or any of the other Released Parties, he agrees to (i) give, to the extent legally permitted, prompt written notice to the Company of the existence of, and the circumstances attendant to, such request; (ii) consult, at the Companys expense, with the Company as to the advisability of taking legally available steps to resist or narrow any such request or otherwise eliminate the need for such disclosure; and (iii) if disclosure is required, cooperate with the Company, at its expense, to obtain a protective order or other reliable assurance in form and substance reasonably satisfactory to the Company that confidential treatment will be accorded to such information as is legally required to be disclosed."
"C.Amendment; Entire Agreement. This Agreement may be modified or amended only by a writing signed by Executive and the Company. This Agreement constitutes the entire understanding and agreement of the Parties, and supersedes prior understandings and agreements, if any, among or between the Parties, with respect to the subject matter of this Agreement. There are no representations, agreements, arrangements or understandings, oral or written, concerning the subject matter hereof between and among the Parties which are not fully expressed or incorporated by reference in this Agreement."
"3.Waiver and Release. For valuable consideration from the Employer, Employee waives, releases, and forever discharges the Employer and HC2 Holdings, Inc. and their current and former affiliates, subsidiaries, board members, officers, attorneys, agents, and employees (collectively referred to as the Employer Releasees) from any and all rights, causes of action, claims or demands, whether express or implied, known or unknown, that arise on or before the date that Employee executes this Agreement, which Employee has or may have against the Employer and/or the Employer Releasees, including, but not limited to, any rights, causes of action, claims, or demands relating to or arising out of the following:"
"(f) Upon the terms and as part of the consideration for the execution and delivery of this Agreement, Jamex Unitholder hereby assigns, sells, transfers and delivers to FGP, and FGP hereby accepts and receives from Jamex Unitholder, 850,000 Common Units (such CommonUnits, the TransferredUnits). Immediately following the transfer oftheTransferred Units to FGP, Jamex Unitholder owns 3,921,447 Common Units (suchCommon Units, theJamex Units)."
"(g) Upon the terms and as part of the consideration for the execution and delivery of this Agreement, each Jamex Party hereby sells, conveys, assigns, transfers, sets over, and delivers unto Bridger all of such Jamex Partys rights, title, and interest in and to the line fill and tank bottoms at the locations described on Schedule 2(g); provided, however, that no Jamex Party makes any representation or warranty as to the quantum of oil in any such location or as to such Jamex Partys title thereto."
"(b) In connection with the execution and delivery of this Agreement and the other Transaction Agreements referred to in Section3(a), (1)FGP OLP and Jamex have entered into that certain Secured Revolving Promissory Note, dated as of the Effective Date, pursuant to which FGP OLP is agreeing to provide (subject to the terms therein) committed working capital financing to Jamex of up to $5,000,000 (theWorking Capital Note) and (2)the Guarantors have executed and delivered the Jamex Entities WCF Guaranty to FGP OLP."
"(d) Each FGP Party will execute and deliver, or cause to be executed and delivered, such transfers, assignments, endorsements, consents and other instruments and take such actions as may be necessary or advisable to demonstrate that, as between Bridger and such Jamex Party, Bridger is the owner of certain products stored at the Berthold Facility."
"(c) Further Assurances. From time to time and without additional consideration, each Party will execute and deliver, or cause to be executed and delivered, such additional or further transfers, assignments, endorsements, consents and other instruments and take such other actions as may be necessary or advisable to carry out its respective obligations under this Agreement. For the purposes of clarity, nothing herein shall be construed to create an obligation (i)on the part of any FGP Party to fulfill any obligation contemplated hereunder to be fulfilled by any Jamex Party or (ii)on the part of any Jamex Party to fulfill any obligation contemplated hereunder to be fulfilled by any FGP Party."
"BEFORE ME, the undersigned authority, on this day personally appeared Alan C. Heitmann, known to me to be the person whose name is subscribed to the foregoing Termination, Settlement and Release Agreement (the Agreement), and who, after first by me being duly sworn, did acknowledge and state under oath that he has read and fully understood the Agreement, and that he executed the Agreement in his representative capacity to be bound by all obligations, terms and conditions expressed therein."
"3.3 Lessor warrants and represents to Lessee that the Leased Property is now and during the term of this Lease (and of any Renewals if applicable) will be in compliance with, and is not and during the term of this Lease (and of any Renewals if applicable) will not be in violation of any Federal, State or Municipal laws or governmental permits issued for the construction or tenancy of the Leased Property. The provisions of this Clause 3.3 do not apply to the activities of Lessee inside the Leased Property which compliance with applicable laws and permits shall be the sole responsibility of Lessee."
"5.3 At Lessee's cost and expense, Lessee may install all trade fixtures, machinery and equipment necessary to perform its activities, provided that such trade fixtures, machinery and equipment shall be removed by Lessee, upon expiration of this Lease without causing damage to the Building's structure and that upon surrender thereof the Leased Property is returned in substantially the same conditions as received by Lessee, except for normal wear and tear due to normal use and the passage of time."
"8.4 For purposes of the above, Parties hereby agree that sixty (60) calendar days prior to the termination of this Lease, Lessee shall allow Lessor and its authorized agents to enter into the Leased Property for purposes of inspecting and determining if the Leased Property requires any repairs which are the responsibility of Lessee. After receipt by Lessee of a written notice from Lessor describing any damages or Alterations to the Leased Property, Lessee will have fifteen (15) calendar days to dispute any damages or Alterations indicated in Lessor's notice. Lessee shall repair, at its sole cost and expense, any damage or Alteration, except for normal wear and tear due to the normal passage of time, that remains undisputed by Lessee after the fifteen- day term indicated above, within a term of forty-five (45) calendar days following expiration of the fifteen-day term indicated above. Should any damage of Alteration be disputed by Lessee and should it be determined through a final and binding judgement issued by a competent court that Lessee is liable for such damage and Alteration, then Lessee should proceed to repair the Leased Property within a term that shall not exceed of forty-five (45) calendar days, or reimburse Lessor within such term those reasonable costs and expenses, incurred by Lessor for repairing the Leased Property, provided that such costs are supported with copies of invoices and expense receipts."
"11.2 Notwithstanding and in addition to Lessor's aforementioned obligation, Lessee, may, in its sole discretion, conduct at its own cost and expense, a Phase I environmental assessment which shall verify that the Leased Property is free of any adverse or material contamination with a Pollutant and/or environmental liability. The Phase I environmental assessment shall be conducted by Lessee within a term of thirty (30) Business Days as of the date of signature of the Lease. In the event that a Pollutant is found in the Leased Property, Lessor ~~,~~ shall clean, remedy and restore such situation at Lessor's own cost. If the Leased Property is not cleaned and restored by Lessor within sixty (60) calendar days after the environmental report is issued Lessee shall have the right to terminate the Lease without prejudice or damage to Lessor and Lessor will return all deposits immediately."
"13.3 Lessor hereby waives its right to recover from Lessee for damages resulting from fire, explosion and other casualties to any part of the Leased Property to the extent Lessor recovers under the abovementioned insurance policies in force at the time of the casualty. This provision shall not extend, and such waiver shall not apply to damages not covered by the abovementioned insurance policies, or which falls below the deductible amount of such insurance policies."
"13.6 If Lessee should fail to procure the required insurance policies as set forth in Section 13.2 above, Lessor after a written notice to Lessee, and without waiving or releasing Lessee from the obligations contained in this Clause, may, but is not obligated to, procure any such insurance policies. Lessee agrees to pay and/or reimburse all costs for such insurance policies within ten (10) calendar days after receiving written notice and an invoice from Lessor."
"16.1 Lessor warrants and represents to Lessee that the necessary infrastructure and installations to connect to the Building the following utility services shall be available at the limit line of the Leased Property (unless otherwise is described on subsections below) on or before the Beneficial Occupancy, ready for immediate hook-up, provided that, except as set forth herein, all hook-up, consumption and contribution fees associated with Lessee's occupancy, in connection with the execution of this Lease, will be borne and paid by Lessee:"
" | (c) | Fringe Benefits and Perquisites. During the Employment Term, Executive shall be entitled to all fringe benefits and perquisites generally made available by the Company or its affiliates to its senior executives in accordance with current Company policy. For the avoidance of doubt, Executive shall not be entitled to any excise tax gross-up under Section280G or Section4999 of the Internal Revenue Code of 1986, as amended (the Code) (or any successor provision), or any other tax gross-up. ---|---|--- "
" | (ii) | an amount equal to the Incentive Compensation that Executive would have been entitled to receive in respect of the fiscal year in which Executives termination date occurs, had Executive continued in employment until the end of such fiscal year, which amount, determined based on actual performance for such year relative to the performance goals applicable to Executive (but without any exercise of negative discretion with respect to Executive in excess of that applied to either senior executives of the Company generally or in accordance with the Companys historical past practice), shall be multiplied by a fraction (A)the numerator of which is the number of days in such fiscal year through the termination date and (B)the denominator of which is 365 (the Pro-Rata Bonus) and shall be payable in a lump sum payment at the time such bonus or incentive awards are payable to other participants. Further, upon Executives Disability (irrespective of any termination of employment related thereto), the Company shall pay Executive for twenty-four (24)consecutive months thereafter regular payments in the amount by which the monthly Base Salary exceeds Executives monthly Disability insurance benefit; and ---|---|--- "
" | (l) | No Conflicts. (A)Executive represents and warrants to the Company that Executive is not a party to or otherwise bound by any agreement or arrangement (including, without limitation, any license, covenant, or commitment of any nature), or subject to any judgment, decree, or order of any court or administrative agency, that would conflict with or will be in conflict with or in any way preclude, limit or inhibit Executives ability to execute this Agreement or to carry out Executives duties and responsibilities hereunder. (B)The Company represents and warrants to Executive that the Company is not a party to or otherwise bound by any agreement or arrangement (including, without limitation, any license, covenant, or commitment of any nature), or subject to any judgment, decree, or order of any court or administrative agency, that would conflict with or will be in conflict with or in any way preclude, limit or inhibit the Companys ability to execute this Agreement or to carry out the Companys duties and responsibilities hereunder. ---|---|--- "
3. | Executive acknowledges and agrees that Executive has been advised to consult with an attorney of Executives choosing prior to signing the Release. Executive understands and agrees that Executive has the right and has been given the opportunity to review the Release with an attorney of Executives choice should Executive so desire. Executive ---|--- 
"(a) Base Salary means Executives annualized base salary, determined based on the rate of pay in effect during the last regularly scheduled payroll period immediately preceding the Change in Control. Base Salary does not include any bonuses, commissions, fringe benefits, overtime, car allowances, other irregular payments or any other compensation except base salary."
"or consolidation of the Company or HoldCo with any other entity, other than a merger or consolidation which would result in the voting securities of such entity outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or HoldCo (as applicable) or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company or HoldCo (or similar transaction) in which no Person (other than those covered by the exceptions in subsection (i)above) acquires more than fifty percent (50%)of the combined voting power of the Companys or HoldCos (as applicable) then outstanding securities shall not constitute a Change in Control for purposes of this Agreement, or (iv)a complete liquidation or dissolution of the Company or HoldCo or the consummation of a sale or disposition by the Company or HoldCo of all or substantially all of its assets, other than the sale or disposition of all or substantially all of such assets to a Person or Persons who beneficially own, directly or indirectly, 50% or more of the combined voting power of the outstanding voting securities of the Company or HoldCo at the time of the sale; provided, further, that notwithstanding the foregoing, to the extent required to avoid payments under this Agreement being subject to any accelerated or additional tax under Section409A of the Code, a Change in Control shall not be deemed to have occurred under this Agreement unless the transaction or event constituting would also constitute a change in control event (as defined in Treasury Regulation 1.409A-3(i)(5))."
"1\. Resolution of Disputes. The Parties have entered into this Agreementas a way of severing the employment relationship between them and amicably settling any and all potential disputes (the Disputes) concerning the Executives service with the Company and the cessation thereof. The Parties desire to resolve the above referenced Disputes and all issues raised by the Disputes, without the further expenditure of time or the expense of contested litigation. Additionally, the Parties desire to resolve any known or unknown claims as more fully set forth below. For these reasons, they have entered into this Agreement. Unless otherwise defined in this Agreement, all capitalized terms that are used but not defined herein, shall have the respective meanings given to them in the Employment Agreement."
"3.1 Accrued Rights. The Executive shall be entitled to payment of his regular Base Salary earned through the Separation Date and all reimbursements and payments due to the Executive under the Companys benefit plans, programs or arrangements, with such amounts payable in accordance with the terms of such plans, programs or arrangements, including, but not limited to, the items and the amounts set forth as Accrued Benefits on the chart attached hereto as Exhibit A."
" | a. | In consideration of the payments (less all applicable federal, state and local withholdings) set forth in Section 5(c) of that certain Employment Agreement, dated March 20, 2015, by and between the Company and Executive (the Employment Agreement), Executive, on behalf of himself and his agents, heirs, executors, successors and assigns, knowingly and voluntarily releases, remises, and forever discharges the Company. Lone Star Fund IX (U.S.), L.P., and each of their respective parents, subsidiaries or affiliates, together with each of their current and former principals, officers, directors, partners, shareholders, agents, representatives and employees, and each of their respective affiliates, and each of the above listed persons heirs, executors, successors and assigns whether or not acting in his or her representative, individual or any other capacity (collectively, the Releasees), to the fullest extent permitted by law, from any and all debts, demands, actions, causes of actions, accounts, covenants, contracts, agreements, claims, damages, costs, expenses, omissions, promises, and any and all claims and liabilities whatsoever, of every name and nature, known or unknown, suspected or unsuspected, both in law and equity (Claims), which Executive ever had, now has, or may hereafter claim to have against the Releasees by reason of the Executives employment with the Company or any other Releasee, the termination thereof, or any other matter, cause or thing whatsoever relating thereto arising from the beginning of time to the time he signs this Agreement (the General Release). The General Release shall apply to any Claim of any type, including, without limitation, any Claims with respect to Executives entitlement to any wages, bonuses, benefits, payments, or other forms of compensation; any claims of wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, violation of public policy, defamation, personal injury, or emotional distress; any Claims of any type that Executive may have arising under the common law; any Claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Fair Labor Standards Act, the federal Workers Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act, each as amended; and any other federal, state or local statutes, regulations, ordinances or common law, or under any policy, agreement, contract, understanding or promise, written or oral, formal or informal, between any of the Releasees and Executive, and shall further apply, without limitation, to any and all Claims in connection with, related to or arising out of Executives employment relationship, or the termination of his employment, with the Company or any Releasee. ---|---|--- "
"THIS AGREEMENT OF SALE AND PURCHASE (this Agreement) is made this 12th day of September, 2016 (the Effective Date) by First Midwest Bank, an Illinois state chartered bank (Seller) having an address at 1 Pierce Place, Itasca, Illinois 60143 and Oak Street Real Estate Capital, LLC, an Illinois limited liability company (Purchaser) having an address at 125 S. Wacker Drive, Suite1220, Chicago,Illinois 60606."
"Assigned Agreements means all of Sellers right, title and interest, to the extent assignable, in the service agreements, maintenance contracts, equipment leasing agreements, warranties, guarantees, bonds, open purchase orders and other agreements and contracts for the provision of labor, services, materials or supplies relating solely to the Real Property,Improvements or Personal Property, all to the extent listed on Schedule8.1(i)-1 and under which Seller is currently paying for or is being paid for services rendered in connection with the Properties, together with all renewals, supplements, amendments and modifications thereof, and"
"(b) ad valorem tax liens, mechanics, materialmens and artisans liens, special assessment liens and other similar liens, in each case not yet delinquent and subject to proration under Section10.4 or being contested in good faith in appropriate proceedings (provided that with respect to the liens being contested, Seller will provide a statutory bond over such liens at the Closing or provide Purchaser with other security with respect to such liens reasonably acceptable to Purchaser such that the liens no longer encumber the applicable Property) (it being agreed by Purchaser and Seller that if any tax or assessment is levied or assessed with respect to the Properties before the Closing Date and Seller has the election to pay such tax or assessment either immediately or under a payment plan with interest, Seller may elect to pay under a payment plan, and the election shall be binding on Purchaser);"
"Section3.5 Withholding Taxes on Purchase Price. It is intended by both Parties that no deduction or withholding shall be required from the sum payable by Purchaser to Seller. In the event, however, the ownership structure of Purchaser or any Qualified Assignee causes any deduction or withholding from any sum payable to Seller, then the sum payable by Purchaser upon which such deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Seller receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Seller would have received and retained in the absence of such required deduction or withholding. If Purchaser is permitted to withhold from any sum payable to Seller pursuant to this Section3.5, Purchaser shall (a)notify Seller of its intention to withhold prior to such withholding, (b)provide Seller with all statutory or other legal authority requiring such withholding, (c)deliver to Seller duly completed and timely executed forms as may be required for the purposes of claiming the benefits of applicable taxes and/or of any applicable tax treaty, and (d)perform any other acts reasonably requested by Seller in connection therewith. For the avoidance of doubt, this provision shall not apply to any withholding made in connection with any liability under any Illinois law related to the bulk sale of the Properties."
"(b) Purchaser acknowledges and agrees that (i)prior to the Effective Date, Purchaser has completed its review, inspection, examination, testing, studies, investigations, analysis and verification of all matters (including, without limitation, the Assigned Agreements, the Retained Agreements, the Licenses and Permits, market conditions, pending litigation, compliance with Governmental Regulations, the environmental condition of the Properties, and the physical and structural condition of the Properties) except new title and survey matters arising since the date of the Title Commitments described in this ArticleV, (ii)the right to conduct further Due Diligence has been given to Purchaser solely as an accommodation to Purchaser in connection with Purchasers contemplated ownership of the Properties following the Closing, and (iii)after the Effective Date, Purchaser shall have no right to terminate this Agreement for any reason (including on account of the results of any further Due Diligence) except as expressly provided in this Agreement. If this Agreement is terminated pursuant to any express right of termination provided herein, Purchaser will promptly, at Sellers option, use commercially reasonable efforts to either deliver all of the Seller Confidential Information to Seller or destroy all of the Seller Confidential Information and certify such destruction to Seller. Notwithstanding the foregoing, Purchaser may retain copies of the Seller Confidential Information, provided it shall do so in accordance with ArticleXII of this Agreement: (w)if necessary to comply with its record keeping requirements; (x)that have been created electronically pursuant to its standard archiving or back-up procedures; or (y)for purposes of"
"Section5.2 Site Visits. (a)Purchaser and the Qualified Assignees and their respective authorized agents, contractors, consultants and representatives (collectively, the Consultants) shall have reasonable access to the Properties on at least one (1)Business Days prior notice to Seller during normal business hours or such other reasonable times as mutually agreed upon by Seller and Purchaser solely for the purpose of inspecting the physical and structural condition of the Properties and conducting non-invasive physical inspections and tests, which notice must contain the specific Properties that Purchaser wishes to access, the type of diligence being performed, including the names of any Consultants, and, if available to Purchaser, a detailed schedule, including reasonably estimated times of arrival and departure, for such access; provided, however, that such inspections or tests will not unreasonably disrupt or disturb (i)the ongoing operation of the Properties, (ii) Sellers ongoing business activities, or (iii)any services to the Properties. Purchasers notice shall describe the scope of the Due Diligence that Purchaser or the Consultants intend to conduct during their access to the Properties and the estimated duration of the required access. Purchaser will submit a list to Seller of the Consultants (along with the specific individuals accessing a specific Property) that Purchaser desires to use for the Due Diligence for Sellers review and approval, which approval shall not be unreasonably"
"(b) If Purchaser desires to conduct any physically intrusive Due Diligence, such as sampling of soils, other media or building materials, Phase II inspections or the like, Purchaser will identify in writing the specific procedures Purchaser desires to perform, provide Seller with a detailed scope of work and request Sellers express written consent. Seller may withhold or condition consent to any physically intrusive Due Diligence in Sellers sole discretion, and in no event will Purchaser be permitted to perform any Phase II or equivalent environmental inspection of any Property without Sellers express written consent which may be withheld in Sellers sole discretion. If Seller objects to the procedures requested by Purchaser, Seller will describe the basis for its objection to Purchaser and may (but will not be obligated to) propose to Purchaser a reasonable alternative for resolving the issue giving rise to the request for intrusive Due Diligence. Upon receipt of Sellers written consent, if granted, Purchaser and the Consultants shall comply with the Due Diligence procedures agreed upon between Purchaser and Seller. Purchaser and the Consultants will perform all of the Due Diligence (whether intrusive or non-intrusive) in accordance with the Governmental Regulations and will not engage in any activities that would violate any Licenses and Permits or Governmental Regulations."
"(e) Notwithstanding the foregoing, Seller will (i)at the Closing cause the release of any liens securing indebtedness for borrowed money and any other monetary liens placed upon any Property by or on behalf of Seller or any Affiliate, and (ii)at or before the Closing cause the release of or provide a statutory bond to release any mechanics liens placed upon the Properties by a third party in connection with work performed on the applicable Property on behalf of Seller or Tenant (unless placed upon the Property on behalf of Purchaser) and any judgment liens, and such liens shall not be Permitted Encumbrances. In lieu of removing or providing a statutory bond to release mechanics liens as described in this Section5.4(e), Seller may provide Purchaser with other security with respect to such liens reasonably acceptable to Purchaser. Seller may elect but shall not be obligated to release any other"
"(b) Authority. The execution and delivery of this Agreement and the Confidentiality and Access Agreement and the performance of Sellers obligations hereunder and thereunder have been or will be duly authorized by all necessary action on the part of Seller, and this Agreement and the Confidentiality and Access Agreement constitute the legal, valid and binding obligations of Seller."
"(c) Non-Contravention. The execution and delivery of this Agreement by Purchaser and the consummation by Purchaser of the transactions contemplated hereby do not (i) violate any judgment, order, injunction, decree, regulation or ruling of any court or Authority, (ii) conflict with, result in a breach of or constitute a default under the organizational documents of Purchaser, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any material agreement or instrument to which Purchaser is a party or by which it is bound, or (iii) violate any law, statute, rule or regulation by which Purchaser is bound."
"(b) There shall not be any apportionments or adjustments between Seller and Purchaser with respect to income and expenses for the Properties. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. From and after the Closing Date, Seller, as tenant under the Seller Lease Agreements, and Purchaser, as landlord under each Seller Lease Agreements, shall each pay and discharge any and all expenses of the Properties to the extent provided in the applicable Seller Lease Agreement. The estimated closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser at least seven (7) Business Days prior to the Closing Date (the Closing Statement) which will show the net amount due either to Seller or to Purchaser as the result of the adjustments (if any) provided for herein, and such net due amount will be added to or subtracted from, as applicable, the Purchase Price to be paid to Seller at the Closing pursuant to Section 3.1 hereof. Not less than one (1) Business Day prior to the Closing Date, the Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at the Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at the Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at the Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed one year after the Closing), re-prorations will be made on the basis of the"
"Section 15.1 Assignment; Binding Effect. Purchaser shall have the right at any time on or after the Effective Date and without Sellers consent to partially assign this Agreement to any one or more applicable Qualified Assignees pursuant to an assignment agreement in substantially the form attached hereto as Exhibit E, and any such Qualified Assignee may further assign this Agreement to any other Qualified Assignee at the Closing pursuant to an assignment agreement in a form reasonably approved by Seller. Purchaser must obtain the written consent of Seller for any other assignment of this Agreement, which consent may be withheld or conditioned in Sellers sole discretion. Any assignment not made in accordance with this Section 15.1 will be, at the election of Seller, null and void. No assignment described in this Section 15.1 shall release Purchaser from any liability under this Agreement."
"(a) Escrow Agent will hold the Earnest Money Deposit in escrow in an interest- bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing of the purchase and sale of all of the Properties, or (ii) the termination of this Agreement with respect to all of the remaining Properties in accordance with any right hereunder. In the event this Agreement is terminated with respect to all of the remaining Properties pursuant to an express right of termination established in this"
"Agreement or any such affidavit or memorandum by Purchaser will be deemed a default by Purchaser hereunder, but Purchaser may file a lis pendens in connection with any proceeding against Seller seeking specific performance of Sellers obligations; provided, however, the parties acknowledge and agree that the FMB Lease Memos and SNDAs may be recorded at Purchasers discretion."
"Witnesseth, that Grantor, for and in consideration of the sum of $10.00 Dollars and other good and valuable consideration in hand paid by the Grantee, the receipt whereof is hereby acknowledged, and pursuant to the power and authority vested in Grantor, by these presents does REMISE, RELEASE, ALIEN AND CONVEY unto the Grantee, and to its successors and assigns, FOREVER, all the following described real estate, situated in the City of [], County of []and State of [] known and described as follows, to wit:"
"Section1445 of the Internal Revenue Code of 1986, as amended (the Code), provides that a transferee (buyer) of a U.S. real property interest must withhold tax if the transferor (seller) is a foreign person. For U.S. tax purposes (including Section1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor (seller) of the property and not the disregarded entity."
"(f) Miscellaneous. This Instrument shall be deemed to be a contract entered into pursuant to the laws of the State where the Leased Property is located and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State where the Leased Property is located. This Instrument may not be modified in any manner or terminated except by an instrument in writing executed by the parties hereto."
"B. Tenant is the owner of the tenants interest in that lease dated , which has been amended by instrument(s) dated and which was originally executed by , as landlord, and by First Midwest Bank, as tenant. (Said lease and the referenced amendment(s) thereto are collectively referred to herein as the Lease.) Attached hereto as Exhibit A is a true, complete and accurate copy of the Lease."
"WHEREAS, Declarant owns that certain parcel of land and improvements located in the City of McHenry, County of McHenry, State of Illinois, commonly known as 3510 W. Elm Street, McHenry, IL, which property is legally described on Exhibit A-1 hereto and is shown on Exhibit B hereto as identified as McHenry Main; and"
"(e) Taxes and Tax Returns. Except as shown on Schedule 3.2(e), each of Buyer and its subsidiaries has duly and timely filed (including all applicable extensions) all material Tax returns required to be filed by it on or before the Effective Date (all such returns being accurate and complete in all material respects), has paid all Taxes shown thereon as arising and has duly paid or made provision for the payment of all Taxes that have been incurred or are due or claimed to be due from it by federal, state, foreign or local taxing authorities other than Taxes that are not yet delinquent or are being contested in good faith, have not been finally determined and have been adequately reserved against. Except as shown on Schedule 3.2(e), there are no material disputes pending, or claims asserted, for Taxes or assessments upon Buyer or any of its subsidiaries for which Buyer does not have reserves that are adequate under GAAP."
"(n) Enforcement Actions or Proceedings. Except for normal examinations conducted by a governmental or regulatory agency in the ordinary course of the business of Buyer and its subsidiaries, or as disclosed in the SEC Documents, no governmental or regulatory agency has pending any Proceeding, enforcement action or, to the Knowledge of Buyer, investigation into the business, disclosures or operations of Buyer or its subsidiaries."
"(b) Except as set forth in Schedule 4.13(b), neither the Companies nor the Seller have received within four (4) years prior to the Most Recent Fiscal Year End, any notice from any Governmental Body or any other Person regarding (i) any actual, alleged, possible or potential violation of or failure to comply with any term or requirement of any Governmental Authorization relating to any Company, any Business or the Assets, including any Property, or (ii) any actual, proposed, possible or potential revocation, withdrawal, suspension, cancellation, termination of or modification to any Governmental Authorization relating to the Companies, the Businesses or the Assets, including the Properties. Any registration, declaration, or filing with, or Consent, or other Governmental Authorization or order by, any Governmental Body that is required in connection with the valid execution, delivery, acceptance, and performance by Seller and the Companies under this Agreement, or the consummation by Seller of any Contemplated transaction under this Agreement, has been or will be completed, made, or obtained on or before the Closing Date."
"(c) All applications required to have been filed for the renewal of the Governmental Authorizations listed or required to be listed on Schedule 4.13(a) have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis with the appropriate Governmental Bodies."
"(d) The Governmental Authorizations listed or required to be listed on Schedule 4.13(a) collectively constitute all of the Governmental Authorizations necessary to permit the Companies to lawfully own, lease, operate, construct and develop each Business on each Property and to otherwise operate and conduct the Businesses in the manner in which the Companies are currently conducted. Such Governmental Authorizations also collectively constitute all of the Governmental Authorizations necessary to permit the Companies to own, lease, occupy, operate, improve, develop and use the Assets, including the Properties, and the Businesses in the manner in which the Companies currently own occupy, operate, improve, develop and use the Assets, including the Properties and operate the Businesses, and are valid and in full force and effect."
"(b) Each Company has filed all Tax Returns that it was required to file under applicable Legal Requirements and regulations. Except as described on Schedule 4.15(b), all such Tax Returns were correct and complete in all respects and have been prepared in substantial compliance with all applicable laws and regulations. All Taxes due and owing by the Companies (whether or not shown on any Tax Return) have been paid. No Company is currently the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where no Company files Tax Returns that any Company is or may be subject to taxation by that jurisdiction. There are no Liens for Taxes (other than Taxes not yet due and payable) upon any of the Assets of the Companies. As of the Closing Date, each Company will have paid all Taxes (other than Taxes not yet due and payable) and with respect to any Taxes that are not yet due and payable as of the Closing Date, each Company has adequately reserved for such Taxes, except as described on Schedule 4.15(b)."
"(h) Except as set forth on Schedule 4.15(h), the unpaid Taxes of each Company, if any (i) did not, as of the most recent fiscal month end of each Company, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet of each Company, and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of each Company in filing its Tax Returns. Since the date of the most recent balance sheet of each Company, no Company has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the Ordinary Course of Business consistent with past custom and practice."
"(vii) To the Knowledge of Seller, each Property has legal access to a public right-of-way. None of the Seller or the Companies is a party to any easements, rights of way, reservations of gas, timber, mineral rights, leases or other Liens which do not appear in the Public Records of City of Petersburg, Virginia or the County of Lunenburg, Virginia. Seller shall not grant, convey, dispose of, sell, encumber, assign or transfer any interest in any Property, including but not limited to any contract, option, lease, easement, or other agreement granting any interest whatsoever in the Properties, without the prior written consent of Buyer. Except as set forth in Schedule 4.16(vii), the Companies hold fee simple title to the Properties."
"(c) Except as set forth on Schedule 4.18(c), (i) the Company Contracts are legal, valid, binding, enforceable, and in full force and effect (except as enforcement thereof may be limited by applicable Insolvency Laws), and will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the Contemplated Transactions; (ii) each Company is, and at all times has been, in material compliance with all applicable terms and requirements of the Company Contracts; (iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) will contravene, conflict with or result in a Breach of, or give the Companies or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, the Company Contracts; (iv) to the Knowledge of Seller, no party to the Company Contracts has threatened to terminate its business relationship with the Companies for any reason; and (v) neither Seller or any Company has given to or received from any other Person any notice regarding the actual, alleged, possible or potential Breach of any Company Contract."
"4.27 Intellectual Property. Schedule 4.27 contains a complete and accurate list and summary of all Intellectual Property owned or possessed by the Companies, or which the Companies have the right to use pursuant to a valid and enforceable, written license, sublicense, agreement, or permission (collectively and together with the Intangible Personal Property, the Intellectual Property Assets). Such Intellectual Property Assets constitute all of the Intellectual Property necessary for the operation of the Businesses of the Companies as presently conducted. To the Knowledge of Seller, the Intellectual Property Assets do not infringe on the intellectual property rights of any Person. The Companies are the owner or licensee of all right, title and interest in and to each of the Intellectual Property Assets, free and clear of all Liens. The Companies have the right to use all of the Intellectual Property Assets without payment to any third party. Each Company owns or has the right to use pursuant to ownership, license, sublicense, agreement, permission or free and unrestricted availability to general public all of the Intellectual Property Assets used by such Company. To the Knowledge of Seller, the Companies have not interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties, and neither Seller, nor the Companies, or their respective members, managers, directors and officers and employees has ever received any written charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that the Companies must license or refrain from using any intellectual property rights of any third party). To the Knowledge of Seller, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any proprietary intellectual property rights of the Companies."
"5.8 Public Announcements. The Parties will keep the existence of this Agreement, the terms and conditions hereof and the Contemplated Transactions confidential, and the Parties will not, nor will they cause or permit any Related Person or Representative to, make any public announcement in respect of this Agreement or the Contemplated Transactions without the prior written Consent of the other Party, which Consent may be given or withheld in any Partys sole discretion; provided, however that the foregoing confidentiality and non-disclosure obligations will not apply to: (1) Buyer if at Closing, if Buyer determines to issue a press release announcing the fact of the acquisition of the Companies, and (2) the Parties to the extent that (a) disclosure of such information is reasonably necessary to consummate the Contemplated Transactions, (b) disclosure of such information is required pursuant to Legal Requirement (including the Securities Exchange Act of 1934, as amended, and the rules of any national stock exchange or automated dealer quotation system) or an Order, (c) disclosure of such information is reasonably necessary for the Parties to enforce their rights under this Agreement, or (d) such information is already in the public domain other than as a result of a breach of this Section 5.8 or Section 5.5 or any other confidentiality or non-disclosure obligation owed to a Party by any Person (including the other Party). To the extent that any public announcement of this Agreement, any of the provisions hereof or the Contemplated Transactions is required of the Parties by Legal Requirement or Order, the Parties will cooperate reasonably with respect to reaching agreement on the contents and timing of such announcement. Prior to any public announcement of this Agreement or the consummation of the transactions contemplated hereby, Robert W. Guidry shall reasonably approve the contents and timing of such announcement. Any Consent required from Seller pursuant to this Section 5.8 or Section 5.5 shall require the Consent of Robert W. Guidry."
"(f) In the event that Closing has not been completed by January 6, 2017, Buyer or Seller, so long as such Party is not then in material breach of any provision of this Agreement or has undertaken any actions or inactions which shall have delayed the Closing, may terminate this Agreement upon five (5) Business Days written notice to the other Party."
"(b) A separate action or actions may be brought and prosecuted against Guarantor, whether or not an action is first brought against Seller or whether Seller shall be joined in any such action or actions. At Buyers option, or any Company if applicable, Guarantor may be joined in any action or Proceeding commenced by Buyer, or any Company, against Seller in connection with and based upon any covenants and obligations of this Agreement, and Guarantor hereby waives any demand by Buyer, or the Companies, and/or prior action by Buyer, or the Companies, of any nature whatsoever against Seller. The Guarantor Consents to forbearance, indulgences and extensions of time on the part of Buyer, or the Companies, being afforded by Seller, and/or the waiver from time to time by Buyer, or the Companies, of any right or remedy on its part as against Seller."
"(j) Seller shall have delivered to Buyer a Closing Statement and accompanying loan payoff statements showing any and all Current Seller Liabilities which such Current Seller Liabilities shall be paid and satisfied at or before Closing in accordance with Section 2.4 (the Closing Statement), and shall have delivered to Buyer the list of all current Accounts Receivables as contemplated by Section 4.11(c);"
"(m) If applicable, Seller shall have delivered to Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code Section 1445, stating that Seller is not a Foreign Person as defined in Code Section 1445;"
(x) CFS Disposal shall have obtained complete and full release from all claims asserted against it in the Andenaur Case (as defined in Schedule 4.20) and an order dismissing all claims against CFS Disposal endorsed by all parties to the Andenaur Case shall have been filed with the Court at Closing.
"(a) Seller hereby covenants and agrees that, to the fullest extent permitted by Legal Requirement, it will defend, indemnify and hold harmless Buyer, and its Related Persons and Representatives, and their respective officers, directors, members, managers, employees, agents, and Representatives, and all successors and assigns of the foregoing (collectively, the Buyer Indemnified Persons), for, from and against any Adverse Consequences arising from or in connection with:"
"(c) Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise or settle such Third-Party Claim, but the Indemnifying Person will not be bound by any determination of any Third-Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its Consent (which may not be unreasonably withheld)."
"(e) With respect to any Third-Party Claim subject to indemnification under this Section 7, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all Confidential Information and the attorney-client and work-product privileges. In connection therewith, each Party agrees that: (i) it will use its best efforts, in respect of any Third-Party Claim in which it has assumed or participated in the defense, to avoid production of Confidential Information (consistent with applicable law and rules of procedure); and (ii) all communications between any Party hereto and counsel responsible for or participating in the defense of any Third-Party Claim shall, to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilege."
"(a) Any dispute or difference between or among any of the Parties arising out of or in connection with this Agreement or the Contemplated Transactions, including without limitation any dispute for indemnification under Section 7 or 8, which such Parties are unable to resolve themselves shall be submitted to and resolved by arbitration before a single arbitrator, for amounts in dispute under Two Hundred Thousand and 00/100 Dollars ($200,000.00) and otherwise before a panel of three (3) arbitrators, which arbitration shall be governed by and enforceable under the Federal Arbitration Act, as supplemented or modified by the provisions of this Section 9.9. The arbitrator(s) will consider the dispute at issue in Richmond, Virginia within one hundred twenty (120) days (or such other period as may be acceptable to the Parties to the dispute) of the designation of the arbitrator. The arbitrator(s) will deliver a written award, including written findings of fact and conclusions of law, with respect to the dispute to each of the arbitrating Parties, who will promptly act in accordance therewith. In no event will the arbitrator(s) have the power to award damages in connection with any dispute in excess of actual compensatory damages. In particular, the arbitrator(s) may not multiply actual damages or award consequential, indirect, special or punitive damages, including, without limitation, damages for lost profits or loss of business opportunity. Any award of the arbitrator(s) will be final, conclusive and binding on the arbitrating Parties; provided, however, that any such Party may seek the vacating, modification or correction of the arbitrator(s) decision or award as provided under Section 10 and Section 11 of the Federal Arbitration Act 9 U.S.C. 1-14. Any Party to an arbitration proceeding may enforce any award rendered pursuant to the arbitration provisions of this Section 9.9 by bringing suit in any court of competent jurisdiction located in the City of Richmond, Virginia. All costs and expenses attributable to the arbitrator(s) will be allocated between the Parties to the arbitration in such manner as the arbitrator(s) determine to be appropriate under the circumstances. Any Party may file a copy of this Section 9.9 with any arbitrator or court as written evidence of the knowing, voluntary and bargained agreement among the Parties with respect to the subject matter of this Section 9.9."
"Adverse Consequences means all actions, suits, Proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement or claims, obligations, Taxes, Liens, losses, interest, expenses (including court costs, reasonable costs of investigation and defense and reasonable attorneys fees and expenses), whether or not involving a Third- Party Claim. Adverse Consequences shall not include any incidental, special, exemplary, multiple (whether of income or any other financial metric), punitive or consequential damages (including diminutions in value or loss of profit or revenue) or any equitable equivalent thereof or substitute therefor, except to the extent actually awarded to a Governmental Authority or other third party."
"(ii) when used to qualify a representation, warranty or other statement of Seller or any Company, the actual knowledge Robert W. Guidry, Charles A. Wilcox, Timothy Webb or Kim Fairbanks has with respect to the particular fact or matter that is the subject of such representation, warranty or other statement, and the knowledge that such individuals could reasonably be expected to have after having conducted a reasonable inquiry or investigation with respect to the fact or matter that is the subject of such representation, warranty or other statement."
"Ordinary Course of Business means an action taken by a Person will be deemed to have been taken in the ordinary course of business only if that action (i) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person, (ii) does not require authorization by the board of directors, owners, shareholders, interest holders, members or managers of such Person (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature, and (iii) is similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are in the same line of business as such Person)."
"2.24 Material Adverse Effect means any circumstance, event, change, development, effect or occurrence that, individually or in the aggregate, (i)is or would reasonably be expected to be materially adverse to the Companys financial position, results of operations, business, condition (financial or otherwise) or Assets of the Company and its Subsidiaries, taken as a whole or (ii)would materially impair the ability of the Company to perform its obligations under this Agreement or otherwise materially threaten or materially impede the consummations of the transactions contemplated herein; provided, however, that in the case of clause (i)only, any circumstance, event, change, development, effect or occurrence"
"that results from any of the following shall be disregarded in determining whether there has been or would be a Material Adverse Effect on the Company (except to the extent that such circumstance, event, change, development, effect or occurrence has a disproportionate adverse effect on the Company and the Subsidiaries relative to other companies engaged in a similar business as the Company): (A)changes, after the Effective Date, in GAAP; (B)changes, after the Effective Date, in Laws or interpretations thereof applicable to the Company or the Subsidiaries by any Governmental Authority; (C)general changes in the national or world economy or securities markets generally; (D)changes in the price or trading volume of the Common Stock on the Trading Market (but not the underlying causes of such changes); or (E)the outbreak or escalation of war or hostilities, any occurrence or threats of terrorist acts or any armed hostilities associated therewith or any national or international calamity, disaster or emergency or escalation thereof."
"2.37 Trading Market means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing)."
"3.1 Purchase and Sale of Securities. Subject to the satisfaction (or waiver) of the terms and conditions of this Agreement, on the Effective Date, (i)the Company agrees to sell and to issue to Buyer the Note in the initial aggregate principal amount of Fifteen Million Dollars ($15,000,000), and (ii)Buyer agrees to pay to the Company the Note Purchase Price in exchange for the Note."
"Except as set forth and disclosed in the disclosure schedule attached to this Agreement and made a part hereof or as disclosed or incorporated by reference in the Parents reports and forms filed with or furnished to the SEC under Sections 13, 14 or 15(d)of the Exchange Act, after December31, 2015 (other than any forward-looking disclosures set forth in any risk factor section or forward-looking statement disclaimer and any other disclosure that is similarly nonspecific and predictive or forward-looking in nature) (all such reports, the SEC Reports), the Company hereby makes the following representations and warranties to Buyer:"
"5.6 Issuance of Securities. The Note to be issued pursuant to this Agreement has been duly authorized by all necessary limited liability company action of the Company and, upon issuance in accordance with the terms hereof, the Note, the LLC Units and the Conversion Shares, as applicable, shall be duly and validly issued, fully paid and non-assessable, and free from all Encumbrances with respect to the issue thereof, and, assuming the accuracy of the representations and warranties of Buyer set forth in ArticleIV above, will be issued in compliance with all applicable United States federal and state securities Laws."
"the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Claims covered hereby, which is permissible under applicable Law. The Company will not be liable to Buyer under this indemnity: (x)for any settlement by Buyer in connection with any Claim effected without the Companys prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; or (y)to the extent that a Claim is attributable to Buyers breach of any of the representations, warranties, covenants or agreements made by Buyer in this Agreement, the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby. Notwithstanding anything to the contrary contained in this Section8.1 or anywhere else in this Agreement or in the Transaction Documents, the aggregate amount of indemnification which may be sought, claimed and/or recovered by the Buyer Indemnified Parties (collectively) from the Company pursuant to this Section8.1 relating to a breach of a representation or warranty by the Company (other than a breach of the Company Fundamental Representations), excluding the representation and warranty of the Company set forth in clause (ii)of Section5.5) shall not, under any circumstances, exceed Fifteen Million Dollars ($15,000,000)."
"8.3 Exclusive Remedy. This ArticleVIII will be the exclusive remedy of the parties following the Closing for any losses arising out of any misrepresentation or breach of the representations, warranties, covenants, agreements or Obligations of the parties contained in this Agreement, except for claims of, or causes of action arising from, fraud or intentional misrepresentation."
"9.1 Anti-Sandbag Provision. Notwithstanding anything to the contrary contained in this Agreement, Buyer agrees that no representation or warranty of the Company in this Agreement shall be deemed to be untrue or incorrect, and the Company shall be deemed not to be in breach thereof, if Buyer or Daniel G. Cohen had knowledge on the Effective Date that any such representation or warranty was untrue or incorrect."
"9.4 Entire Agreement. This Agreement and (i)the Exhibits and Schedules attached hereto, and (ii)the documents delivered pursuant hereto, including the Transaction Documents, collectively, set forth all the promises, covenants, agreements, conditions and understandings between the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior and contemporaneous agreements, understandings, inducements or conditions, expressed or implied, oral or written."
"(c) In the event that all or any portion of this Note is converted pursuant to Section2, promptly after such Conversion, the Holder shall surrender this Note, duly endorsed, to the Company and this Note shall thereupon be canceled. At its expense, the Company shall as promptly as practicable (but in no event more than five (5)days after the Holders surrender of this Note) issue and deliver to the Holder (i)the number of LLC Units to which the Holder is entitled upon such Conversion, (ii)any accrued interest from the Interest Payment Date immediately prior to Conversion through the date of Conversion, (iii)if applicable, a check payable to the Holder for any cash amounts payable as described in Section3(b), and (iv)in the case of a partial Conversion of this Note, a new promissory note (a Replacement Note), duly endorsed by the Parent and the Company, representing the unconverted portion of the Outstanding Amount, the terms and conditions of which Replacement Note shall be identical to this Note (except for the Outstanding Amount thereunder)."
"5. Redemption of LLC Units. Until the Parents stockholders approve the Stockholder Proposal, the Holder shall not be permitted to redeem any LLC Units received upon a Conversion of this Note if satisfaction of such redemption by Parent with shares of its Common Stock would result in the Parent issuing a number of shares of Common Stock that, when aggregated with any shares of Common Stock previously issued to the Holder in connection with a redemption of LLC Units received by the Holder upon any Conversion of this Note, equals or exceeds twenty percent (20%) of the outstanding Common Stock as of the date of this Note. Notwithstanding the foregoing, upon written request by the Holder to redeem any LLC Units received upon a Conversion of this Note, Parent may elect, in its sole discretion, to redeem such LLC Units in cash."
"(b) Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California or of any other state."
" | Recitals | 1 ---|---|---  | Agreement | 1 I. | Purchase and Sale of Assets | 1  | 1.1 | Acquired Assets | 1  | 1.2 | Assumed Liabilities | 1  | 1.3 | Excluded Liabilities2 | 2  | 1.4 | Delivery of Files | 3 II. | Purchase Price | 3  | 2.1 | Purchase Price | 3  | 2.2 | The Closing | 3  | 2.3 | Deliveries at the Closing | 3 III. | Representations and Warranties of Seller | 4  | 3.1 | Organization and Capitalization | 4  | 3.2 | Authorization | 4  | 3.3 | No Adverse Consequences | 5  | 3.4 | Consents | 5  | 3.5 | Approval by Shareholders and Partners | 5  | 3.6 | Title to and Condition of Acquired Assets | 5  | 3.7 | Reserved | 5  | 3.8 | Reserved | 5  | 3.9 | Contracts and Commitments | 5  | 3.10 | Labor Matters | 7  | 3.11 | Litigation | 7  | 3.12 | Taxes | 7  | 3.13 | Solvency | 7  | 3.14 | Environmental Matters | 7  | 3.15 | Compliance with Laws | 8  | 3.16 | No Bankruptcy, Etc. | 8  | 3.17 | Intellectual Property | 8  | 3.18 | Fraudulent Transfer | 9  | 3.19 | Other Transactions | 9  | 3.20 | Disclosure of Material Facts | 9  | 3.21 | Acknowledgments by Sydson Resources and Sydson Energy | 9 i ---  --- "
"No Bankruptcy, etc. There has not been filed any petition or application, or any proceedings commenced, by or against, or with respect to any assets (including the Acquired Assets) of the Seller under Title 11 of the United States Code or any other law, domestic or foreign, relating to bankruptcy, reorganization, compromise, arrangement, insolvency, rehabilitation, conservatorship, readjustment of debt or creditors rights."
"The term Proprietary Assets means all material licenses currently owned and/or used by the Seller or necessary to exploit and/or operate the Acquired Assets. The Seller owns, or has the right to use under the agreements or upon the terms described in Schedule 3.17, all of the Proprietary Assets and has taken actions reasonable to protect the Proprietary Assets. Except as set forth in Schedule 3.17, the Seller does not require any license or other agreement to use any of the Proprietary Assets, except for licenses or agreements that can be obtained in the Ordinary Course of Business without unreasonable effort, delay, cost, or expense. Except as set forth in Schedule 3.17, the Seller is not bound by or a party to any options, licenses, or agreements of any kind with respect to the Intellectual Property Rights (as defined below) of any other Person and, to the Sellers Knowledge, there are no undisclosed outstanding options, licenses, or agreements of any kind relating to the Proprietary Assets. With respect to each item of the Sellers Proprietary Assets that any third party owns and that the Seller uses pursuant to license, sublicense, agreement or permission: (i) the license, as it relates to the Seller is legal, valid, binding, enforceable, and in full force and effect in all material respects, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law); (ii) the Seller is not, and to the Sellers Knowledge, no other party to the license, sublicense, agreement or permission is in material breach or default, and no event has occurred which with notice or lapse of time or both would constitute a material breach or default or permit termination, modification or acceleration thereunder; (iii) the Seller has not, and to the Sellers Knowledge, no other party to the license, sublicense, agreement or permission has repudiated any material provision thereof; and (iv) the Seller has not granted any sublicense or similar right with respect to the license, sublicense, agreement or permission other than as permitted by such license, sublicense, agreement or permission."
"The Seller has not violated or infringed, and is currently not violating or infringing, and neither the Seller nor, to the Sellers Knowledge, any managerial employee or consultant of the Seller has received any communications alleging that the Seller (or any of its employees or consultants) has violated or infringed or, by conducting its business as presently proposed, would violate or infringe, any of the patents, trademarks, service marks, trade names, copyrights, mask-works, licenses, trade secrets, processes, data, know-how, or other intellectual property rights related to the Acquired Assets, if any (Intellectual Property Rights), of any other Person. To the Sellers Knowledge, no third party is currently materially interfering with, infringing upon, misappropriating, diluting, constituting the unauthorized use, misuse or misappropriation of or violating any of the Sellers currently owned or licensed Intellectual Property Rights."
"Sydson Resources and Sydson Energy each represent that it is an accredited investor as such term is defined in Rule 501 of Regulation D (Regulation D) promulgated under the Securities Act of 1933, as amended (Securities Act), and that the Seller is able to bear the economic risk of an investment in the Securities."
"The Seller hereby acknowledges and represents that (a) the Seller has knowledge and experience in business and financial matters, prior investment experience, or the Seller has employed the services of a purchaser representative (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Buyer to the Seller to evaluate the merits and risks of such an investment on the Sellers behalf; (b) the Seller recognizes the highly speculative nature of this investment; and (c) the Seller is able to bear the economic risk that the Seller hereby assumes."
"The Seller hereby acknowledges that the offering of the Securities has not been reviewed by the SEC nor any state regulatory authority since the offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act pursuant to Regulation D promulgated thereunder. The Seller understands that the Securities have not been registered under the Securities Act or under any state securities or blue sky laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Securities unless they are registered under the Securities Act and under any applicable state securities or blue sky laws or unless an exemption from such registration is available."
"Authorization. Buyer has full corporate power and corporate authority to enter into and perform this Agreement and the other documents contemplated herby to which it is a party and to consummate the transactions contemplated hereby and thereby. Buyer is duly qualified or licensed to do business as a foreign corporation and is in good standing in Texas. This Agreement has been, and at the Closing the other transactions contemplated hereby to which Buyer is a party will be, duly and validly executed and delivered by Buyer and constitutes the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law)."
"a)Investment Purpose. Purchaser is acquiring the Securities for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws; provided, however, by making the representations herein, Purchaser does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act. The Purchaser is acquiring the Securities hereunder in the ordinary course of its business. The Purchaser does not presently have any agreement or understanding, directly or indirectly, with any person to distribute any of the Securities in violation of applicable securities laws."
"d)Information. The Purchaser and its advisors, if any, have been, and for so long as the Securities remain outstanding will continue to be, furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been reasonably requested by the Purchaser or its advisors, provided that the Purchaser has not been furnished with, and the Company shall not in the future deliver to the Purchaser without its consent, any material non-public information concerning the Company. The Purchaser and its advisors, if any, have been, and for so long as the Securities remain outstanding will continue to be, afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigation conducted by Purchaser or any of its advisors or representatives shall modify, amend or affect Purchasers right to rely on the Companys representations and warranties contained in Section 3 below. The Purchaser understands that its investment in the Securities involves a significant degree of risk."
"c)The representations and warranties of the Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Closing Date."
"h)Scvcrability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof."
"Each of the undersigned subsidiaries of the Company jointly and severally, absolutely, unconditionally and irrevocably, guarantees to the Purchaser and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of all amounts due under, and all other obligations under, the Note. Each such subsidiary's liability under this Guaranty shall be unlimited, open and continuous for so long as this Guaranty remains in force."
"Intellectual Property means all of the following: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software (including but not limited to data, data bases and documentation)."
"Subsidiary of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person."
"4.9 Brokers and Finders. No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company."
| 6|  ---|---|--- |  ---|--- compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Securities for any period of time. Such Investor is not a broker- dealer registered with the SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.
"| 10|  ---|---|--- |  ---|--- 8.2 Counterparts; This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile, which shall be deemed an original."
"(b) At the Closing, on the terms and subject to the conditions set forth in this Agreement, the Buyer expressly assumes, the Assumed Liabilities and no other Liabilities. The Assumed Liabilities are to be paid on a contingency basis according to the rate set by the Financing Payment Schedule. The Assumed Liabilities are:"
"(iii) Prior to complete payment of the Initial Milestone Payment and complete payment of the Assumed Liabilities the Buyer agrees to use commercially reasonable efforts to maintain the Acquired Assets in good standing such that in the event of termination, all Acquired Assets may be returned to the Seller. However, it is the Buyers responsibility to maintain all patents at the Buyers sole discretion and the Buyer may choose, at its sole discretion, to abandon any patents included in the Acquired Assets and those abandoned patents need not be returned to the Seller upon termination."
"1.6 Cooperation: Further Assurances. At any time and from time to time after the Closing, without further consideration, Seller shall execute and deliver such other instruments of sale, transfer, conveyance, assignment and delivery and take such actions as Buyer may reasonably request to more effectively sell, transfer, convey, assign and deliver to Buyer, and to confirm Buyers rights to, title in and ownership of, the Acquired Assets, and to place Buyer in actual possession and operating control thereof, including the furnishing of information and execution of any documents, the filing or recordation of which with Governmental Entities, including the United States Patent and Trademark Office, is prerequisite to the statutory establishment or recordation of assignment of any patents, copyrights or trademarks included in the Acquired Assets. The Parties shall cooperate in activities associated with the sale, transfer, conveyance, assignment and delivery of the Acquired Assets to Buyer and with the purchase of the Acquired Assets by Buyer. With Sellers cooperation, Buyer shall, at Buyers cost and using Buyers choice of counsel, record in the records of the requisite Governmental Entities the series of transfers of the Acquired Patents and Regulatory Documents including but not limited to INDs, NDA filings, and other documentation from Seller to Buyer."
"(c) At any time and upon the request of Buyer and at Buyers expense, Seller, on behalf of itself and its subsidiaries and Affiliates, shall convey, assign and transfer to Buyer or Buyers designee all right, title and interest in any other patents, patent applications, Patent Rights or similar intellectual property, whether or not filed or recorded with the United States Patent and Trademark Office or any other patent authority that Seller or its subsidiaries or Affiliates acquired from Miravant or Miravants subsidiaries or Affiliates (collectively, the Additional Patent Rights)."
"3.1 Organization; Authority. Buyer is duly organized and validly existing under the laws of the state of its incorporation and has full power to enter into this Agreement and to carry out the provisions hereof. The execution and delivery by Buyer of this Agreement and each Ancillary Agreement to which it is a party, the performance by Buyer of obligations under this Agreement and each Ancillary Agreement to which it is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Buyer, and no other proceedings on the part of Buyer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement and each Ancillary Agreement to which Buyer is a party has been duly and validly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable against Buyer in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity."
"(b) no Action or Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;"
"(b) Seller shall indemnify and hold harmless any Buyer Indemnified Party from and against any and all Liabilities, demands, actions, causes of action, and Damages, joint or several, to which any such Buyer Indemnified Party may become subject arising out or in connection with the transactions contemplated by this Agreement. or any claim, litigation, investigation or proceedings relating to the foregoing regardless of whether any of such Buyer Indemnified Party is a party thereto, and to reimburse such Buyer Indemnified Party for any legal or other expenses as they are incurred in connection with investigating, responding to or defending any of the foregoing, provided that any Losses, claims, Damages, Liabilities and expenses are finally judicially determined to have resulted from the gross negligence or willful misconduct of Seller. Notwithstanding anything in this Section 6.1(b), Seller shall not be responsible for any indemnification payments under this Section 6.1(b) in excess of $100,000."
"Photodynamic Therapy Technology means all patents, trademarks, trademark rights, trade names, trade name rights, service marks, copyrights, registered designs, utility models and similar property rights, and all applications relating to the foregoing, all inventions, trade secrets and know-how, databases, product and marketing information, surveys, data and research supporting all product registrations, transferable rights to software, and all other intellectual property rights and all analytical and validation methods, and all other know-how and information relating to Photodynamic Therapy or otherwise required to formulate, test, manufacture, use and sell any product relating to Photodynamic Therapy, and all improvements and modifications thereof that are hereafter developed."
"Subsidiary, with respect to any Person, means any other Person, whether or not existing on the date hereof, in which the specified Person directly or indirectly through subsidiaries or otherwise, beneficially owns at least fifty percent (50%) of either the equity interest or voting power of or in such other Person or otherwise controls such other Person."
"Closing Date means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i)the Purchasers obligations to pay the Subscription Amount and (ii)the Companys obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the third Trading Day following the date hereof."
"(i)the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);"
"(a)Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a)(i). Except as set forth on Schedule 3.1(a)(ii), the Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded."
"(d)No Conflicts. 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 Shares 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 Companys or any Subsidiarys certificate or articles of incorporation, bylaws or other organizational or charter documents, or (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 upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, 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 have or reasonably be expected to result in a Material Adverse Effect."
"(f)Issuance of the Shares; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective onAugust 3, 2016 (the Effective Date), including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements as set forth in General Instruction I.B.6 of Form S-3. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading."
"(j)Litigation. 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 any of the Transaction Documents or the Shares or (ii)could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor 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"
"(p)Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the Intellectual Property Rights). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material"
"(e)Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i)the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii)access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii)the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired.Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non- public information with respect to the Company which such Purchaser agrees need not be provided to it.In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser."
"4.2Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section2 of the Securities Act) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction."
"4.5Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section4.3, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchasers consent, the Company hereby covenants and agrees that such purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice"
"(b)From the date hereof until 30 days after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. Variable Rate Transaction means a transaction in which the Company (i)issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A)at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B)with a conversion, exercise or"
"4.11Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Shares or otherwise."
"(k) Certain Fees. No brokerage or finders fees or commissions are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents."
"(iii) The Purchase is aware that a number of law firms have announced that they are investigating claims on behalf of shareholders of the Company regarding potential violations of the Exchange Act. In addition, the Company and its Board of Directors have been served with a Summons and Complaint alleging that the members of the Board of Directors have breached their fiduciary duties. While the Company and the Board of Directors believe that there are no merits to the alleged claims, the results of any investigation, or the outcome of any claims that may brought against the Company or its Board of Directors cannot be predicted with certainty. Moreover, regardless of the outcome, investigations can have an adverse impact on us because it may entail a significant amount of costs to defend the Company against any claims, such claims may negatively affect morale of employees and may divert the attention of management."
"(iv) The Purchaser is aware that the Companys prior auditing firm has indicated that it will not provide a consent to use the Companys audited financial statements for the fiscal year 2014 unless certain conditions are met, which could affect the Companys ability to timely file certain reports required under the Exchange Act."
"(a) The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Common Stock under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser under this Agreement."
"(c) Certificates evidencing the shares of Securities shall be eligible for removal of the restrictive legend, (a) following any sale of such shares of Securities pursuant to Rule 144, or (b) if such Securities are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Securities and without volume or manner-of-sale restrictions, (c) following any sale of such shares of Securities, pursuant to the plan of distribution in an effective registration statement (in compliance with any prospectus delivery requirements), or (d) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) (the Removal Date). The Company shall cause its counsel to issue a legal opinion to its transfer agent promptly after the Removal Date if required by the transfer agent to effect the removal of the legend hereunder as permitted by applicable law then in effect. The Company agrees that following the Removal Date, it will, no later than five (5) trading days following the delivery by a Purchaser to the Company or the transfer agent of a certificate representing the Securities, as the case may be, issued with a restrictive legend, together with any reasonable certifications requested by the Company, the Companys counsel or the transfer agent (such fifth (5th) trading day, the Legend Removal Date), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth herein. Certificates for Securities subject to legend removal hereunder shall be transmitted by the transfer agent to the Purchaser by crediting the account of the Purchasers prime broker with the Depository Trust Company System as directed by such Purchaser if the transfer agent is then a participant in such system and the Company is eligible to use such system and as directed by such Purchaser if either (i) there is an effective registration statement permitting the resale of such Securities by the Purchaser (and the Purchaser provides the Company or the Companys counsel with any requested certifications with respect to future sales of such shares) or (ii) the shares are eligible for resale by the Purchaser under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Securities and without volume or manner-of-sale restrictions."
"5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers."
"5.10 Survival. The representations and warranties shall survive the Closing and the delivery of the Notes until, with respect to each Purchaser, the Note held by such Purchaser has been paid in full at which time they shall expire such respect to Purchaser and shall no longer be of any force or effect."
"5.16 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day."
"B. Each Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, that aggregate number of shares of (i)voting common stock, no par value, of the Company (the Common Stock) set forth below such Purchasers name on the signature page of this Agreement (collectively, the Common Shares) and (ii)a newly-issued series of convertible perpetual preferred stock, series A, no par value, of the Company (the Series A Preferred Stock) set forth below such Purchasers name on the signature page of this Agreement (collectively, the Series A Preferred Shares). The Series A Preferred Shares shall be convertible into shares of the Common Stock subject to the terms and conditions set forth in the Designation (as defined below) and, following the adoption of, and subject to the terms and conditions of, the Designation, non- voting common stock of the Company, no par value (the Non-Voting Common Stock). The Common Shares and the Series A Preferred Shares shall be collectively referred herein to as the Shares. The Shares of Common Stock and Non-Voting Common Stock into which the Series A Preferred Stock is to be convertible are referred to herein as the Underlying Shares and the Underlying Shares and the Shares are referred to herein, collectively, as the Securities. Any Purchaser that proposes to acquire a number of Common Shares that would exceed 5% of the Companys total outstanding voting equity immediately following the closing of this offering shall instead acquire Common Shares representing 4.99% of the total outstanding voting equity immediately following the offering and any shares acquired in excess of this amount shall be issued as Series A Preferred Shares. The Company anticipates these shares of Series A Preferred Shares would be converted into shares of a newly created class of Non-Voting Common Stock following approval of such creation at the Companys next annual shareholders meeting."
"Burdensome Condition means any restriction or condition that a Purchaser determines, in its reasonable good faith judgment, (i)would require the ownership, capitalization, governance or operations of the Company and the Bank following the Closing to deviate in any material respect from the ownership, capitalization, governance or operations contemplated by any of the"
"(3) any joint venture, partnership, strategic alliance, or other similar contract (including any franchising agreement, but in any event excluding introducing broker agreements), and any contract relating to the acquisition or disposition of any material business or material assets (whether by merger, sale of stock or assets, or otherwise), which acquisition or disposition is not yet complete or where such contract contains continuing material obligations or contains continuing indemnity obligations of the Company or any of the Company Subsidiaries;"
(6) any contract or arrangement under which the Company or any of the Company Subsidiaries is licensed or otherwise permitted by a third party to use any Intellectual Property (as defined in Section 3.1(r)) that is material to its business (except for any shrinkwrap or click through license agreements or other agreements for software that is generally available to the public and has not been customized for the Company or the Company Subsidiaries) or under which a third party is licensed or otherwise permitted to use any Intellectual Property owned by the Company or any of the Company Subsidiaries;
"no outstanding options, warrants, scrip, rights to subscribe to, calls, or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares of capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls, or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company, other than those issued or granted pursuant to compensatory plans, contracts or arrangements described in the SEC Reports; except as set forth in Schedule 3.1(g), there are no material outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or by which the Company is bound. Except for the Registration Rights Agreement, if applicable, there are no agreements or arrangements under which the Company is obligated to register the sale of any of its securities under the Securities Act. There are no outstanding securities or instruments of the Company that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company or any of its Subsidiaries. The Company does not have any stock appreciation rights or phantom stock plans or agreements or any similar plan or agreement. Neither the Company nor any of its Subsidiaries has any liabilities or obligations required to be disclosed in the SEC Reports but not so disclosed in the SEC Reports, which, individually or in the aggregate, will have or would reasonably be expected to have a Material Adverse Effect. There are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares pursuant to this Agreement and the other Transaction Documents."
"(u) Internal Control over Financial Reporting. Except as set forth in the SEC Reports, the Company and its Subsidiaries maintain internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Companys outside auditors and the audit committee of the board of directors (A)any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Companys ability to record, process, summarize, and report financial information, and (B)any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal control over financial reporting. The Company has no knowledge of any reason that its outside auditors and its principal executive officer and principal financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to"
"(ii) If such Purchaser is not an entity, the execution, delivery, and performance by such Purchaser of the applicable Transaction Documents to which it is a party and the transactions contemplated by this Agreement have been duly authorized. Each of the applicable Transaction Documents to which such Purchaser is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, or similar laws relating to, or affecting generally the enforcement of, creditors rights and remedies or by other equitable principles of general application. If such Purchaser is an individual, the Purchaser is an adult individual, with full capacity to execute, deliver and perform this Agreement."
"(j) Brokers and Finders. No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest, or claim against or upon the Company or any Purchaser for any commission, fee, or other compensation pursuant to any agreement, arrangement, or understanding entered into by or on behalf of such Purchaser. Each Purchaser, severally and not jointly, shall indemnify, pay, and hold the Company harmless against, any liability, loss or expense (including, without limitation, attorneys fees and out-of-pocket expenses) arising in connection with any such right, interest or claim. In any proceeding or matter in respect of which the Company may seek indemnity from one or more Purchasers pursuant to this Section 3.2(j), the Company and such Purchaser(s) shall have all the rights and obligations of an Indemnified Person and the indemnifying party, respectively, in Section4.8."
"(b) Legends. Certificates evidencing the Securities shall bear any legend as required by the blue sky laws of any state and a restrictive legend in substantially the following form (and with respect to any Shares held in book entry form, the Transfer Agent will record such a legend on the share register), until such time as they are not required under Section 4.1(c) or applicable law:"
"(c) Removal of Legends. Upon the written request of the holder, the restrictive legend set forth in Section 4.1(b) above shall be removed and the Company shall issue a certificate without such restrictive legend or any other restrictive legend to the holder of the applicable Securities upon which it is stamped, if (i)such Securities are registered for resale under the Securities Act, (ii)such Securities are sold or transferred pursuant to Rule 144, or (iii)such Securities are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (orRule144(i)(2), if applicable) as to such securities and without volume or manner-of-sale restrictions. Following the earlier of (A)the Effective Date or (B)Rule 144 becoming available for the resale of Securities, without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Securities and without volume or manner-of-sale restrictions, the Company, upon the written request of the holder, shall instruct the Transfer Agent to remove the legend from the Securities and shall cause its counsel to issue any legend removal opinion required by the Transfer Agent. Any fees (with respect to the Transfer Agent, Company counsel, or otherwise) associated with the issuance of such opinion or the removal of such legend shall be borne by the Company. If a"
"4.6 No Integration. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company shall, sell, offer for sale, or solicit offers to buy, or otherwise negotiate in respect of any security (as defined in Section2 of the Securities Act) that will be integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares to the Purchasers."
"4.12 No Additional Issuances. Between the date of this Agreement and the Closing Date, except for the Shares being issued pursuant to this Agreement, the Company shall not issue or agree to issue any additional shares of Common Stock (other than shares of Common Stock issuable pursuant to outstanding options) or other securities which provide the holder thereof the right to convert such securities into, or acquire, shares of Common Stock."
"6.3 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a)the date of transmission, if such notice or communication is delivered via facsimile or e-mail (provided the sender receives a machine-generated confirmation of successful facsimile transmission or e-mail notification or confirmation of receipt of an e-mail transmission) at the facsimile number or e-mail address specified in this Section prior to 5:00 p.m., Eastern time, on a Trading Day, (b)the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address specified in this Section on a day that is not a Trading Day or later than 5:00 p.m., Eastern time, on any Trading Day, (c)if sent by U.S. nationally recognized overnight courier service with next day delivery specified (receipt requested) the Trading Day following delivery to such courier service, or (d)upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows:"
"whole or in part to any Person to whom such Purchaser assigns or transfers any Shares in compliance with the Transaction Documents and applicable law, provided such transferee shall agree in writing to be bound, with respect to the transferred Shares, by the terms and conditions of this Agreement that apply to the Purchasers."
"(vi) by the Company or Purchaser (with respect to itself only), upon written notice to the other, if any of the conditions to Closing set forth in Sections 5.1 or 5.2 are not capable of being satisfied on or before 5:00 p.m., Eastern time, on the Outside Date; provided, however, that the right to terminate this Agreement under this Section 6.16(a)(vi) shall not be available to any Person whose failure to comply with its obligations under this Agreement has been the cause of or resulted in the failure of the conditions to Closing set forth in Sections 5.1 or 5.2 to occur on or before such time; or"
"We have acted as counsel to Riverview Financial Corporation, a Pennsylvania corporation (Riverview or the Company), in connection with the offering, sale and issuance by Riverview (the Offering) of up to269,885 shares of its no par value common stock (the Common Stock) and up to 1,348,809 shares of its no par value Series A convertible perpetual preferred stock (the Preferred Stock) pursuant to Rule 506 of Regulation D, promulgated under the Securities Act of 1933, as amended. This opinion letter is provided pursuant to Section 2.2(a)(iii) of the Stock Purchase Agreement of even date (the Stock Purchase Agreement) between Riverview and the Purchasers of the Common and Preferred Stock in the Offering (collectively, the Purchasers); Ambassador Financial Group, Inc. is acting as placement agent in connection with the Offering. Capitalized terms used herein which are not otherwise defined shall have the meanings ascribed to such terms in the Stock Purchase Agreement."
"2\. To render these opinions, we have made the investigation described herein. We have not independently verified information obtained from third persons, except as set forth herein. As used in this opinion, the expression to our knowledge is based solely upon: (i)inquiries of representatives of Riverview; (ii)the facts stated in the representations and warranties of Riverview contained in the Transaction Documents, the Other Documents, and oral and written representations to us of officers of Riverview (in the Certificate or otherwise) ; (iii) documents in our files to which we have given substantive attention in the course of our representation of Riverview in connection with this transaction; and (iv)the actual knowledge of lawyers of our firm, i.e., PaulG.Mattaini and Kimberly J. Decker, who have given substantive legal attention to representation of Riverview in connection with the Offering."
"4. | Each person listed below has been duly elected or appointed to the position(s) indicated opposite his name and is duly authorized to sign the Purchase Agreement on behalf of the Company, and the signature appearing opposite such persons name and title below is such persons genuine signature. ---|--- "
"Reference is made to the Stock Purchase Agreement by and between Riverview Financial Corporation, a Pennsylvania corporation (the Corporation), Castle Creek Capital Partners VI, L.P., a Delaware limited partnership (the VCOC Investor), and certain other investors, dated as of January , 2017 (the Stock Purchase Agreement), pursuant to which the VCOC Investor agreed to purchase from the Corporation shares of its voting common stock, no par value (the Common Stock), and shares of its Series A Convertible Perpetual Preferred Stock, no par value (the Series A Preferred Stock). Capitalized terms used herein without definition shall have the respective meanings in the Stock Purchase Agreement."
" |  | For so long as the VCOC Investor, directly or through one or more Affiliates, continues to hold any Common Stock, Series A Preferred Stock or Non-Voting Common Stock, without limitation or prejudice of any of the rights provided to the VCOC Investor under the Stock Purchase Agreement, the Castle Creek Side Letter, or any other agreement or otherwise, provide the VCOC Investor or its designated representative with: ---|---|--- "
"2. | Designation; Number of Shares. The series of shares of Preferred Stock hereby authorized shall be designated the Series A Convertible Preferred Stock (the Series A Preferred Stock). The initial number of authorized shares of the Series A Preferred Stock shall be 1,348,809 shares. The Series A Preferred Stock shall have no par value. Each share of Series A Preferred Stock has the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications, or terms or conditions of redemption as described herein. Each share of Series A Preferred Stock is identical in all respects to every other share of Series A Preferred Stock. ---|--- "
" | (b) | Liquidation Distributions. In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series A Preferred Stock will be entitled to receive, for each share of Series A Preferred Stock, out of the assets of the Corporation or proceeds thereof (whether capital or surplus) available for distribution to shareholders of the Corporation, subject to the rights of any Persons to whom the SeriesA Preferred Stock is subordinate, a distribution (Liquidation Distribution) equal to (i)any authorized and declared, but unpaid, Dividends with respect to such share of Series A Preferred Stock at the time of such liquidation, dissolution or winding up, and (ii)the amount the holder of such share of Series A Preferred Stock would receive in respect of such share if such share had been converted into shares of Common Stock at the then applicable conversion rate at the time of such liquidation, dissolution or winding up (assuming the conversion of all shares of Series A Preferred Stock at such time, without regard to any limitations on conversion of the Series A Preferred Stock). All Liquidating Distributions to the holders of the Series A Preferred Stock and Common Stock set forth in clause (ii)above will be made pro rata to the holders thereof. ---|---|--- "
"12. | Record Holders. To the fullest extent permitted by law, the Corporation will be entitled to recognize the record holder of any share of Series A Preferred Stock as the true and lawful owner thereof for all purposes and will not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other Person, whether or not it will have express or other notice thereof. ---|--- "
" | (l) | Mandatory Conversion Date means, with respect to shares of Series A Preferred Stock, the date upon which the amendment to the Articles of Incorporation to authorize a class of Non-Voting Common Stock, as approved by the shareholders of the Corporation, is filed with the Pennsylvania Department of State, which filing shall be made by the Corporation no later than three business days following the Shareholder Approval Date. ---|---|--- "
 | (q) | Shareholder Approval Date means the date of shareholder approval of an amendment to the Articles of Incorporation authorizing a class of Non- Voting Common Stock in an amount of shares sufficient to permit the full conversion of the Series A Preferred Stock into shares of Non-Voting Common Stock. ---|---|--- 
"3. | Dividends. The Non-Voting Common Stock will rank pari passu with the Common Stock with respect to the payment of dividends or distributions, whether payable in cash, securities, options or other property, and with respect to issuance, grant or sale of any rights to purchase stock, warrants, securities or other property (collectively, the Dividends). Accordingly, the holders of record of Non-Voting Common Stock will be entitled to receive as, when, and if declared by the Board of Directors, Dividends in the same per share amount as paid on the Common Stock, and no Dividends will be payable on the Common Stock or any other class or series of capital stock ranking with respect to Dividends pari passu with the Common Stock unless a Dividend identical to that paid on the Common Stock is payable at the same time on the Non-Voting Common Stock in an amount per share of Non-Voting Common Stock equal to the product of (i)the per share Dividend declared and paid in respect of each share of Common Stock and (ii)the number of shares of Common Stock into which such share of Non-Voting Common Stock is then convertible (without regard to any limitations on conversion of the Non-Voting Common Stock); provided however, that if a stock Dividend is declared on Common Stock payable solely in Common Stock, the holders of Non-Voting Common Stock will be entitled to a stock Dividend payable solely in shares of Non-Voting Common Stock. Dividends that are payable on Non-Voting Common Stock will be payable to the holders of record of Non-Voting Common Stock as they appear on the stock register of the Corporation on the applicable record date, as determined by the Board of Directors, which record date will be the same as the record date for the equivalent Dividend of the Common Stock. In the event that the Board of Directors does not declare or pay any Dividends with respect to shares of Common Stock, then the holders of Non-Voting Common Stock will have no right to receive any Dividends. ---|--- "
" | (i) | A holder of Non-Voting Common Stock shall be permitted to convert, or, upon the written request of the Corporation, shall convert, shares of Non- Voting Common Stock into shares of Common Stock at any time or from time to time, provided that, upon such conversion, the holder, together with all Affiliates of the holder, will not own or control in the aggregate more than 4.99% of the Common Stock or of any class of Voting Securities issued by the Corporation, excluding for the purpose of this calculation any reduction in ownership resulting from transfers by such holder of Voting Securities of the Corporation (which, for the avoidance of doubt, does not include Non-Voting Common Stock). In any such conversion, each share of Non-Voting Common Stock will convert initially into one (1)share of Common Stock, subject to adjustment as provided in Section6 below. ---|---|--- "
"Effectiveness Period means the period during which all Registrable Securities covered by a Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Companys transfer agent."
"Registration Statements means any one or more registration statements of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, amendments and supplements to such Registration Statements, including post- effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such Registration Statements."
"permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon (i)any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (A)to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by or on behalf of such Holder expressly for use therein, or (B)to the extent, but only to the extent, that such information relates to such Holder or such Holders proposed method of distribution of Registrable Securities and was reviewed and approved by such Holder or Holders Counsel expressly for use in a Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto or (C)in the case of an occurrence of an event of the type specified in Sections 4(c)(ii)-(iv), to the extent, but only to the extent, related to the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section7(h), but only if and to the extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected, or (ii)Holders failure to deliver or cause to be delivered the Prospectus or any amendment or supplement thereto made available by the Company in compliance with Section7(g). In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation."
"(h) Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 4(c)(ii)-(iv), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the Advice) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company may provide appropriate stop orders to enforce the provisions of this paragraph."
"(n) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania applicable to contracts made and to be performed entirely within such Commonwealth. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in accordance with the provisions of the Purchase Agreement."
"(s) Entire Agreement. This Agreement and the Purchase Agreement constitute the entire agreement among the parties hereto with respect to the subject matter hereof. There are no restrictions, promises, warranties or undertakings, other than as set forth or referred to herein and in the Purchase Agreement. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof."
| | ---|---|--- NAME OF INVESTING ENTITY AUTHORIZED SIGNATORY  By: |  | Name: |  | Title: |  | ADDRESS FOR NOTICE | c/o: |  | | Street: |  | | City/State/Zip: |  | | Attention: |  | | Tel: |  | | Fax: |  | | E-mail: |  | [Signature Page to Registration Rights Agreement]
"Transfer or Re-sale. The Buyer understands that (i) the sale or re-sale of the Securities has not been and is not being registered under the 1933 Act or any applicable state securities laws, and the Securities may not be transferred unless (a)the Securities are sold pursuant to an effective registration statement under the 1933 Act, (b)in the case of subparagraphs (c), (d) and (e) below, the Buyer shall have delivered to the Company, at the cost of the Buyer, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold, or transferred pursuant to an exemption from such registration, including the removal of any restrictive legend which opinion shall be accepted by the Company, (c)the Securities are sold or transferred to an affiliate (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (Rule 144) of the Buyer who agrees to sell or otherwise transfer the Securities only in accordance with this Section 2(f) and who is an Accredited Investor, (d)the Securities are sold pursuant to Rule 144, or (e)the Securities are sold pursuant to Regulation S under the 1933 Act (or a successor rule) (Regulation S); (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance with the terms of said Rule and further, if said Rule is not applicable, any re-sale of such Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register such Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder (in each case). Notwithstanding the foregoing or anything else contained herein to the contrary, the Securities may be pledged as collateral in connection with a bona fide margin account or other lending arrangement. "
"Expenses. At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith (Documents), including, without limitation, reasonable attorneys and consultants fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer."
"Corporate Existence. So long as the Buyer beneficially owns the Note, the Company shall maintain its corporate existence and shall not sell all or substantially all of the Companys assets, except in the event of a merger or consolidation or sale of all or substantially all of the Companys assets, where the surviving or successor entity in such transaction (i) assumes the Companys obligations hereunder and under the agreements and instruments entered into in connection herewith and (ii) is a publicly traded corporation whose Common Stock is listed for trading on the OTC MARKETS, Nasdaq, NYSE or AMEX."
"with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law."
"Counterparts; Signatures by Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement."
"Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer."
"(a)Commencement of Regular Sales of Common Stock. On the date of this Agreement, upon the satisfaction of the conditions set forth inSections 6(I)and7(I)hereof, the Company shall sell to the Investor and the Investor shall purchase 125,000 Purchase Shares (such initial Purchase Shares, the Initial Purchase Shares) for aggregate consideration of $468,750 (the Initial Purchase Amount).Upon the satisfaction of the conditions set forth inSections 6(II)and7(II)hereof (the Commencement and the date of satisfaction of such conditions the Commencement Date) and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Regular Purchase Notice from time to time, to purchase the requested Share Amount (each such purchase a Regular Purchase), on the Purchase Date. The Company may deliver a Regular Purchase Notice to the Investor so long as at least ten (10) Business Days have passed since the most recent Regular Purchase was completed. After the Investor receives the Regular Purchase Notice, the Investor shall confirm receipt of the Regular Purchase Notice by 6:00 p.m., Eastern Time, with the Purchase Price and the Purchase Amount. Notwithstanding the foregoing, if mutually agreed upon by both the Company and Investor a Purchase Notice may be delivered sooner."
(c)No Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Purchase Shares or the fairness or suitability of an investment in the Purchase Shares nor have such authorities passed upon or endorsed the merits of the offering of the Purchase Shares.
"(a)Organization and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate power and authority to own and use its properties and assets and to carry on its business as currently conducted.Neither the Company nor any of its Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.The Company has no Subsidiaries except as set forth inSEC Documents (as defined below)."
"(k)Intellectual Property Rights.Except as disclosed in the SEC Documents, the Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted.None of the Company's material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual property rights have expired or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the date of this Agreement.Except as disclosed in the SEC documents, the Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries of any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret or other similar rights of others, or of any such development of similar or identical trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought against, or to the Company's knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement, which could reasonably be expected to have a Material Adverse Effect."
"(o)Regulatory Permits.The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit."
"(c)Listing/DTC.The Company shall promptly secure the listing of all of the Purchase Shares to be issued to the Investor hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange or automated quotation system, if any, upon which the Common Stock is then listed, and shall maintain, so long as any shares of Common Stock shall be so listed, such listing of all such Purchase Shares from time to time issuable hereunder. The Company shall maintain the listing of the Common Stock on the Principal Market and shall comply in all respects with the Companys reporting, filing and other obligations under the bylaws or rules and regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal Market.The Company shall promptly, and in no event later than the following Business Day, provide to the Investor copies of any notices it receives from any Person regarding the continued eligibility of the Common Stock for listing on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under thisSection 5(c).The Company shall take all action necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares."
"(b)The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date hereof (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the date hereof;"
"(e)No statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed by any federal, state, local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation of or which would materially modify or delay any of the transactions contemplated by the Transaction Documents; and"
"II.The obligation of the Investor to buy Purchase Shares (other than the Initial Purchase Shares) under this Agreement is subject to the satisfaction of each of the following conditions on or prior to the Commencement Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:"
"(i)No action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors or affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking material damages in connection with such transactions."
"(c)the delisting of the Common Stock from the OTC Bulletin Board,provided,however, that the Common Stock is not immediately thereafter trading on The NASDAQ Capital Market, The NASDAQ Global Market, the New York Stock Exchange, the NYSE MKT or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or nationally recognized successor to any of the foregoing);"
"Consents and Approvals. Other than in compliance with the provisions of applicable laws, statutes and regulations, no notice to, filing with, or authorization, consent or approval of, any domestic or foreign public body or authority is necessary for the consummation of the transactions contemplated by this Agreement. The execution, delivery, performance and consummation of this Agreement does not and will not: (a)violate, conflict with or constitute a default or an event that, with notice or lapse of time or both, would be a default, breach or violation under any term or provision of any instrument, agreement, contract, commitment, license, promissory note, conditional sales contract, indenture, mortgage, deed of trust, lease or other agreement, instrument or arrangement to which Sellers are a party or by which the Sellers are bound; (b)violate, conflict or constitute a breach of any law, statute, regulation or judicial or administrative order, award, judgment or decree to which the Sellers are a party or to which the Sellers are bound or subject; or (c)result in the creation or imposition of any adverse claim or interest, or any lien, encumbrance, charge, equity or restriction of any nature whatever, upon or affecting the Sellers. The Sellers have consented to the sale of the RSA Membership Interests to Buyer and this Agreement, subject to the terms contained in this Agreement and the RSA operating agreement. "
"Other Remedies. The remedies provided by this paragraph 7 are in addition to, and not in lieu of, such other remedies as may be available under applicable laws. Without limitation, the Buyer and Sellers are entitled to enforce this Agreement by specific enforcement without the necessity of demonstrating inadequacy of damages or irreparable harm."
"Payment. Claims for indemnification involving the payment of money will be paid within ninety (90) calendar days after written notification thereof. Claims for indemnification involving amounts due to third parties will be promptly paid when due, subject to the right to contest the same in good faith. Unpaid claims will incur interest at a floating rate of interest equal to the prime rate published from time to time in The Wall Street Journal."
"Ginnie Mae Aged Loan shall mean a Loan (i) in respect of which the related Takeout Investor is Ginnie Mae and (ii) that (x) is subject to outstanding Transactions hereunder and/or (y) was subject to any REIT Agency Agreement Transaction, for between thirty-one (31) calendar days (whether or not consecutive) and forty-five (45) calendar days (whether or not consecutive) in the aggregate."
"Market Value shall mean the value, determined by Buyer in its sole discretion, of the Loans (including the related Servicing Rights) if sold in their entirety to a single third-party purchaser taking into account the fact that the Loans may be sold under circumstances in which Seller and/or the servicer of the Loans is in default under this Agreement. Buyers determination of Market Value shall be conclusive upon the parties, absent manifest error on the part of Buyer. Buyer shall have the right to mark to market the Loans on a daily basis which Market Value with respect to one or more of the Loans may be determined to be zero. Seller acknowledges that Buyers determination of Market Value is for the limited purpose of determining the value of Purchased Loans which are subject to Transactions hereunder without the ability to perform customary purchasers due diligence and is not necessarily equivalent to a determination of the fair market value of the Loans achieved by obtaining competing bids in an orderly market in which the originator/servicer is not in default under a revolving debt facility and the bidders have adequate opportunity to perform customary loan (or property, as applicable) and servicing due diligence.For the purpose of determining the related Market Value, Buyer shall have the right to request at any time from Seller, an updated valuation for each Loan, in a form acceptable to Buyer in its sole discretion.The Market Value"
"Maximum Mortgage Interest Rate shall mean with respect to each Adjustable Rate Loan, a rate that is set forth on the related Loan Schedule and in the related Note and is the maximum interest rate to which the Mortgage Interest Rate on such Loan may be increased on any Adjustment Date."
"Total Indebtedness shall mean with respect to any Person, for any period, the aggregate Indebtedness of such Person and its Subsidiaries during such period, less the amount of any nonspecific consolidated balance sheet reserves maintained in accordance with GAAP and less the amount of any non-recourse debt, including any securitization debt."
"Except where otherwise provided in this Agreement, any determination, consent, approval, statement or certificate made or confirmed in writing with notice to Seller by Buyer or an authorized officer of Buyer provided for in this Agreement is conclusive and binds the parties in the absence of manifest error. A reference to an agreement includes a security interest, guarantee, agreement or legally enforceable arrangement whether or not in writing related to such agreement."
"then Buyer shall give Seller prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to purchase Loans hereunder, and Seller shall, at its option, either repurchase the Purchased Loans then subject to a Transaction or pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Loans."
(f)Seller shall repurchase the related Purchased Loans from Buyer on each related Repurchase Date.Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Loan.Seller is obligated to obtain the related Purchased Loans from Buyer or its designee (including Custodian) at Sellers expense on (or after) the related Repurchase Date.
"(g)Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied and provided further no Event of Default shall have occurred and be continuing, unless Buyer is notified to the contrary not later than 11:00 a.m. New York City time at least two (2) Business Days prior to any such Repurchase Date, on each related Repurchase Date each Purchased Loan shall automatically become subject to a new Transaction.In such event, the related Repurchase Date on which such Transaction becomes subject to a new Transaction shall become the Purchase Date for such Transaction. Seller shall deliver an updated Transaction Notice with respect to such Purchased Loans. For each new Transaction, unless otherwise agreed, (y) the accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (z) the Pricing Rate shall be as set forth in the Pricing Side Letter."
"(b)In addition, Seller agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made by Seller hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement (Other Taxes)."
"(e)Without prejudice to the survival or any other agreement of Seller hereunder, the agreements and obligations of Seller contained in this Section5 shall survive the termination of this Agreement.Nothing contained in this Section5 shall require Buyer to make available any of its tax returns or other information that it deems to be confidential or proprietary."
"(b)Notice required pursuant to Section 6(a) may be given by any means provided in Section21 hereof.Any notice given shall be met, and the related Margin Call satisfied, within twenty-four (24) hours.The failure of Buyer, on any one or more occasions, to exercise its rights under this Section 6, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date.Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyers rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller."
"(d)Seller hereby irrevocably constitutes and appoints Buyer and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Seller and in the name of Seller or in its own name, from time to time in Buyers discretion, for the purpose of carrying out the terms of this Agreement, including without limitation, protecting, preserving and realizing upon the Purchased Items, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, including without limitation, to protect, preserve and realize upon the Purchased Items, to file such financing statement or statements relating to the Purchased Items without Sellers signature thereon as Buyer at its option may deem appropriate, and, without limiting the generality of the foregoing, Seller hereby gives Buyer the power and right, on behalf of Seller, without assent by, but with notice to, Seller, if an Event of Default shall have occurred and be continuing, to do the following:"
"(e)The powers conferred on Buyer hereunder are solely to protect Buyers interests in the Purchased Items and shall not impose any duty upon it to exercise any such powers.Buyer shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to Seller for any act or failure to act hereunder, except for its or their own gross negligence or willful misconduct."
"(ix)Consents, Licenses, Approvals, etc. Buyer shall have received copies certified by Seller of all consents, licenses and approvals, if any, required in connection with the execution, delivery and performance by Seller of, and the validity and enforceability of, the Loan Documents, which consents, licenses and approvals shall be in full force and effect, including but not limited to, evidence of Sellers status as an FHA Approved Mortgagee and VA approval as lender, as well as FHA approval as an FHA Approved Mortgagee with respect to any Subservicer of the Loans."
"(xii)Servicing Agreement(s).Buyer shall have received a copy of and approved the terms of each Servicing Agreement applicable to the Purchased Loans, in each case, as such agreement may be amended, supplemented or otherwise modified from time to time and approved by Buyer; provided, however, that Buyers failure to approve any such amendment, supplement or modification shall not affect the validity or enforceability of such amendment, modification or supplement or the Servicing Agreement except as it relates to the Purchased Loans, which shall continue to be serviced in accordance with the terms of such agreement without giving effect to such amendment, supplement or modification thereto."
"(i)No Legal Bar.The execution, delivery and performance of this Agreement, the other Program Documents, the sales hereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of any Seller Party and will not result in, or require, the creation or imposition of any Lien (other than the Liens created hereunder) on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation."
"(y)Solvency; Fraudulent Conveyance.As of the date hereof and immediately after giving effect to each Transaction, each Seller Party is and will be solvent, is able and will be able to pay and is paying its debts as they mature and does not and will not have an unreasonably small amount of capital to engage in the business in which it is engaged and proposes to engage. No Seller Party intends to incur, or believes that it has incurred, debts beyond its ability to pay such debts as they mature. No Seller Party is contemplating the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of such Seller Party or any of its assets. Neither Seller is transferring any Loans with any intent to hinder, delay or defraud any of its creditors."
"(aa)No Broker.No Seller Party has dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Purchased Loans pursuant to this Agreement; provided, that if any Seller Party has dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Purchased Loans pursuant to this Agreement, such commission or compensation shall have been paid in full by Seller."
"(ee)Sanctions.No Seller Party, Servicer or any of their subsidiaries nor, to the knowledge of the Seller and Guarantor, any director, officer, agent, employee or affiliate of any Seller Party, Servicer or any of their subsidiaries (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, a member state of the European Union (including sanctions administered or enforced by Her Majestys Treasury of the United Kingdom) or other relevant sanctions authority (collectively, Sanctions and such persons, Sanctioned Persons and each such person, a Sanctioned Person), (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, Sanctioned Countries and each, a Sanctioned Country) or (iii) will, directly or indirectly, use the proceeds of this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise)."
"(3) at the time it furnishes consolidated financial statements pursuant to paragraphs (i) and (ii) above, a certificate of a Responsible Officer of each related Seller Party, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of such Seller Party and its Subsidiaries in accordance with"
"(d)Prohibition of Fundamental Changes.No Seller Party shall at any time, directly or indirectly, (i) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of its assets without Buyers prior consent; or (ii) form or enter into any partnership, joint venture, syndicate or other combination which would have a Material Adverse Effect with respect to such Seller Party."
"(vi)upon, and in any event within five (5) Business Days after, the involuntary termination, acceleration, maturity of or reduction in the amount available for borrowing under any repurchase agreement, loan and security agreement or similar credit facility or agreement for borrowed funds entered into by a Seller Party and any third party to the extent that such agreement or facility, prior to the effectiveness of such termination, acceleration, maturity or reduction, provides for"
"practice, including those maintained pursuant to subsection (i), and all such Records shall be in Custodians possession unless Buyer otherwise approves.Seller shall deliver to Buyer or its designee updates of such Servicing Records at least monthly, and more frequently as requested by Buyer. Seller will not cause or authorize any such papers, records or files that are an original or an only copy to leave Custodians possession, except for individual items removed in connection with servicing a specific Loan, in which event Seller will obtain or cause to be obtained a receipt from Custodian for any such paper, record or file."
"Servicing Records (including any FHA or VA required records) and the physical and contractual servicing of each Purchased Loan, to Buyer or its designee upon the termination of Seller, Seller or Subservicer as the servicer or subservicer, respectively, pursuant to Section43(d).In addition, with respect to the Servicing Records for each Purchased Loan and the physical and contractual servicing of each Purchased Loan, the Seller shall deliver (or cause the related Subservicer to deliver) such Servicing Records and, to the extent applicable, the servicing to Buyer or its designee within thirty (30) days of the earlier of (i) the termination of Seller or Subservicer as the servicer or subservicer, respectively, of the Purchased Loans and (ii) the related Purchase Date for each such Purchased Loan (the Servicing Delivery Requirement).Notwithstanding the foregoing, such Servicing Delivery Requirement will be deemed restated for each such Purchased Loan on each Repurchase Date on which such Purchased Loan is repurchased by Seller and becomes subject to a new Transaction (and the immediately preceding delivery requirement will be deemed to be rescinded), and a new thirty (30) day Servicing Delivery Requirement will be deemed to commence for such Purchased Loans as of such Repurchase Date in the absence of directions to the contrary from Buyer.Further, the Servicing Delivery Requirement will no longer apply to any Purchased Loan that is repurchased in full by the Seller in accordance with the provisions of this Agreement and is no longer subject to a Transaction.Sellers transfer of the Servicing Rights, Servicing Records and the physical and contractual servicing under this Sectionshall be in accordance with customary standards in the industry and such transfer shall include the transfer of the gross amount of all escrows held for the related mortgagors (without reduction for unreimbursed advances or negative escrows)."
"(ll)Seller Approvals.(A) Seller shall at all times remain approved (i) by FHA as an FHA Title II non-supervised lender, (ii) by Ginnie Mae as an issuer of Ginnie Mae I and II single family mortgage-backed securities, (iii) by Fannie Mae as a servicer, (iv) by Freddie Mac as a servicer and (v) by VA as a VA Approved Lender, and (B)Seller and each Subservicer (if any) servicing any Purchased Loans hereunder shall at all times have all consents, licenses and approvals necessary to service the Purchased Loans. "
"(qq)Maintenance of Financial Covenants.To the extent that Seller is obligated under any other Indebtedness (whether now in effect or in effect at any time during the term of the Agreement) to comply with a financial covenant that is comparable to any of the financial covenants set forth in Section 13(p) and such comparable financial covenant is more restrictive to Seller or otherwise more favorable to the related lender or buyer thereunder than any financial covenant hereunder, such comparable financial covenant shall, with no further action required on the part of either Seller or Buyer, automatically become a part hereof and be incorporated herein, and Seller hereby covenants to maintain compliance with such comparable financial covenant at all times throughout the terms of this Agreement. In the event that such other Indebtedness is terminated or otherwise amended such that the comparable financial covenant is no longer more restrictive to Seller, Seller shall provide notice to Buyer of such termination or amendment, and within thirty (30) days of Buyers receipt of such notice, Buyer may in its sole reasonable discretion agree that the original terms of the related financial covenant in this Agreement is deemed to be reinstated by providing written notice to Seller of such reinstatement."
(hh)(1) The 6-month rolling average ratio of sales by Seller and/or any Subsidiary of Seller to Fannie Mae or Freddie Mac to proposed sales by Seller and/or any Subsidiary or Affiliate of Seller to Fannie Mae or Freddie Mac is less than 90% (Sales Ratio Trigger) and (2) Seller has failed to repurchase all Purchased Loans hereunder within five (5) days of Buyers request for such repurchase following the occurrence of any Sales Ratio Trigger; or
"No failure on the part of Buyer to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by Buyer of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All rights and remedies of Buyer provided for herein are cumulative and in addition to any and all other rights and remedies provided by law, the Program Documents and the other instruments and agreements contemplated hereby and thereby, and are not conditional or contingent on any attempt by Buyer to exercise any of its rights under any other related document.Buyer may exercise at any time after the occurrence of an Event of Default one or more remedies, as they so desire, and may thereafter at any time and from time to time exercise any other remedy or remedies."
"(b)Buyer may, in accordance with applicable law, at any time sell to one or more entities (Participants) participating interests in this Agreement, its agreement to purchase Loans, or any other interest of Buyer hereunder and under the other Program Documents.In the event of any such sale by Buyer of participating interests to a Participant, Buyers obligations under this Agreement to Seller shall remain unchanged, Buyer shall remain solely responsible for the performance thereof and Seller shall continue to deal solely and directly with Buyer in connection with Buyers rights and obligations under this Agreement and the other Program Documents. Seller agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Buyer under this Agreement; provided, that such Participant shall only be entitled to such right of set-off if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with Buyer the proceeds thereof.Buyer also agrees that each Participant shall be entitled to the benefits of Sections 3(h), 3(i) and 23 with respect to its"
"(d)Seller agrees to cooperate with Buyer in connection with any such assignment and/or participation, to execute and deliver replacement notes, and to enter into such restatements of, and amendments, supplements and other modifications to, this Agreement and the other Program Documents in order to give effect to such assignment and/or participation. Seller further agrees to furnish to any Participant identified by Buyer to Seller copies of all reports and certificates to be delivered by Seller to Buyer hereunder, as and when delivered to Buyer."
"2.Identification of Principals. Agent agrees (a) to provide the other party, prior to the date on which the parties agree to enter into any Transaction under the Agreement, with a written list of Principals for which it intends to act as Agent (which list may be amended in writing from time to time with the consent of the other party) and (b) to provide the other party, before the close of business on the next business day after orally agreeing to enter into a Transaction, with notice of the specific Principal or Principals for whom it is acting in connection with such Transaction.If (i) Agent fails to identify such Principal or Principals prior to the close of business on such next business day or (ii) the other party shall determine in its sole discretion any Principal or Principals identified by Agent are not acceptable to it, the other party may reject and rescind any Transaction with such Principal or Principals, return to Agent any Purchased Loans or portion of the Purchase Price, as the case may be, previously transferred to the other party and refuse any further performance under such Transaction, and Agent shall immediately return to the other party any portion of the Purchase Price or Purchased Loans, as the case may be, previously transferred to Agent in connection with such Transaction; provided, however, that (A) the other party shall promptly (and in any event within one business day) notify Agent of its determination to reject and rescind such Transaction and (B) to the extent that any performance was rendered by any party under any Transaction rejected by the other party, and such party shall remain entitled to any Price Differential or other amounts that would have been payable to it with respect to such performance if such Transaction had not been rejected.The other party acknowledges that Agent shall not have any obligation to provide it with confidential information regarding the financial status of its Principals; Agent agrees, however, that it will assist the other party in obtaining from Agents Principals such Information regarding the financial status of such Principals as the other party may reasonably request."
"3.Limitation of Agents Liability. The parties expressly acknowledge that if the representations of Agent under the Agreement, including this Annex I, are true and correct in all material respects during the term of any Transaction and Agent otherwise complies with the provisions of this Annex I, then (a) Agents obligations under the Agreement shall not include a guarantee of performance by its Principal or Principals; provided that Agent shall remain liable for performance pursuant to Section10 of the Agreement, and (b) the other partys remedies shall not include a right of setoff "
"(cc)Deeds of Trust.In the event the Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Custodian or Buyer to the trustee under the deed of trust, except in connection with a trustees sale after default by the Mortgagor."
"(ii)Mortgaged Property Undamaged.The Mortgaged Property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to materially affect the value of the Mortgaged Property as security for the Loan or the use for which the premises were intended and each Mortgaged Property is in good repair. There have not been any condemnation proceedings with respect to the Mortgaged Property and Seller has no knowledge of any such proceedings."
"(xx)Takeout Commitment.Each Purchased Loan that is subject to a Takeout Commitment, conforms to the requirements and the specifications set forth in such Takeout Commitment and the related regulations, rules, requirements and/or handbooks of the applicable Takeout Investor.Each such Takeout Commitment is enforceable, in full force and effect and if requested by Buyer, validly and effectively assigned to Buyer pursuant to a Trade Assignment.Each such Trade Assignment is enforceable and in full force and effect.Each Takeout Commitment and Trade Assignment is a legal, valid and binding obligation of Seller enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)."
"(ccc)No Predatory Lending.No predatory, abusive or deceptive lending practices, including but not limited to, the extension of credit to a mortgagor without regard for the mortgagors ability to repay the Loan and the extension of credit to a mortgagor which has no tangible net benefit to the mortgagor, were employed in connection with the origination of the Loan."
"(ttt)Compliance with Subprime Statement.No Purchased Loan that is an Adjustable Rate Mortgage Loan and that has a residential loan application date on or after September 13, 2007, is subject to the Interagency Statement on Subprime Mortgage Lending, 72 FR 37569 (July 10, 2007) as defined by Fannie Mae inthe Lender Letter 03-07 (August 15, 2007) or by Freddie Mac inFreddie Mac Single Family Advisory (September 7, 2007) and Freddie Mac Bulletin 2007-4)."
"In connection with (i) the Amended and Restated Master Repurchase Agreement dated as ofMarch 3, 2017, as amended (the Agreement), by and between PennyMac Loan Services, LLC (the Seller) and Citibank, N.A. (Buyer) and (ii) the Guaranty Agreement, dated as of June 26, 2012 by [___________] (Guarantor) in favor of Buyer, I, _______________, _______________ of [Seller] [Servicer] [Guarantor], do hereby certify that:"
"(k)Seller has at all times during the previous calendar month maintained its status with (i) Ginnie Mae as an approved issuer, (ii) HUD, pursuant to Sections 203 and 211 of the National Housing Act, (iii) the FHA, as an FHA Approved Mortgagee and servicer, (iv) VA as a VA approved Lender, and (vi) Fannie Mae and Freddie Mac as an approved seller/servicer and lender; and"
"(iv)for the purpose of effecting the transfer of servicing with respect to the Assets from Seller and any applicable Servicer to a successor servicer appointed by Buyer in its sole discretion and to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish such transfer of servicing, and, without limiting the generality of the foregoing, Seller hereby gives Buyer the power and right, on behalf of Seller, without assent by Seller, to, in the name of Seller or its own name, or otherwise, prepare and send or cause to be sent goodbye letters and Section 404 Notices on behalf of Seller and any applicable Servicer in connection with such transfer of servicing; and"
"Effective as of ___[DATE]________ [___________ ] hereby relinquishes any and all right, title and interest it may have in and to the Loans described in ExhibitA attached hereto upon purchase thereof by Citibank, N.A. (Buyer) from Seller named below pursuant to that certain Amended and Restated Master Repurchase Agreement, dated as of March 3, [2017] as of the date and time of receipt by [___________] of $____________ for such Loans (the Date and Time of Sale) and certifies that all notes, mortgages, assignments and other documents in its possession relating to such Loans have been delivered and released to Seller named below or its designees as of the Date and Time of Sale."
"Section 2.04 Excluded Liabilities. Other than the Assumed Liabilities set forth in Section 2.03, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the Excluded Liabilities). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:"
"(b) any Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) the portion of the Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to Section 6.14; or (iii) other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law) for any Pre-Closing Tax Period;"
"(h) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments except as set forth specifically as Assumed Liabilities;"
for a period of twelve months from the Closing Date (the Escrow Period) and distributed as soon as practicable following expiration of the Escrow Period in accordance with the terms of the Escrow Agreement to satisfy (i) any adjustments to the Purchase Price in favor of Buyer pursuant to Section 2.06(a); and (ii) any and all claims made by Buyer or any other Buyer Indemnitee against Seller pursuant to Article VIII.
"(iii) The revenues, traffic acquisition costs and operating expenses, earnings before taxes, interest and depreciation, and/or net income (loss) (each, a ""P&L Item"") of the Post-Closing Audited Financial Statements shall not vary more than 10% from a P&L Item(s) for such periods which appear in the Unaudited Financial Statements previously provided to Buyer (the ""Audited Financial Statement Variance""), other than for audit adjustments related to stock-based compensation, preferred warrant expenses, discounts of convertible debt or accrued income tax assets and liabilities. The determination of any Audited Financial Statement Variance shall be determined solely by any difference between any P&L Item reflected in the Unaudited Financial Statements and the Post-Closing Audited Financial Statements. If the Audited Financial Statement Variance is a negative number, Seller shall pay to Buyer an amount equal to such difference (the ""Post-Closing Audited Financial Statement Adjustment"" and together with the Post-Closing Working Capital Adjustment, the Post-Closing Adjustments), provided, however, that to the extent Buyer has the right to a Post-Closing Audited Financial Statement Adjustment as a result"
"Section 2.09 Third Party Consents. To the extent that Seller's rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller, at its expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer's rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and the Purchased Asset, shall act after the Closing as Buyer's agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer, provided that such arrangement does not result in additional costs or liabilities to Seller other than as set forth in the Transition Services Agreement or immaterial amounts."
"(b) Section 4.11(b) of the Disclosure Schedules lists all Intellectual Property Agreements. Seller has provided Buyer with true and complete copies of all such Intellectual Property Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Intellectual Property Agreement is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or, to Seller's Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of breach or default of or any intention to terminate, any Intellectual Property Agreement. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Intellectual Property Agreement or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder."
"(a) Section 4.14(a) of the Disclosure Schedules sets forth with respect to the Business (i) each customer who has paid aggregate consideration to Seller for goods or services rendered in an amount greater than or equal to $100,000.00 for each of the two most recent fiscal years (collectively, the Material Customers); and (ii) the amount of consideration paid by each Material Customer during such periods. Except as set forth in"
"Section 4.15 Insurance. Section 4.15 of the Disclosure Schedules sets forth (a) a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, personal property, workers' compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Seller or its Affiliates and relating to the Business, the Purchased Assets or the Assumed Liabilities (collectively, the Insurance Policies); and (b) with respect to the Business, the Purchased Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Seller since January 1, 2016. Except as set forth on Section 4.15(b) of the Disclosure Schedules, there are no claims related to the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Seller has not received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due, accrued. All such Insurance Policies (a) are in full force and effect and enforceable in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. Seller is not in default under, nor has it otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Business and are sufficient for compliance with all applicable Laws and Contracts to which Seller is a party or by which it is bound. True and complete copies of the Insurance Policies have been made available to Buyer."
"(b) Except as set forth in Section 4.16(b) of the Disclosure Schedules, there are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business. Seller is in compliance with the terms of each Governmental Order set forth in Section 4.16(b) of the Disclosure Schedules. No event has occurred or circumstances exist that may constitute or result in (with or without notice or lapse of time) a violation of any such Governmental Order."
"(a) Section 4.20(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Business as of the date hereof, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus or other incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section 4.20(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions and bonuses payable to employees, independent contractors or consultants of the Business for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any compensation, commissions or bonuses."
"(c) Seller is and has been in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers' compensation, leaves of absence and unemployment insurance. All individuals characterized and treated by Seller as consultants or independent contractors of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified in all material respects. Except as set forth in Section 4.20(c), there are no Actions against Seller pending, or to the Seller's Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant, volunteer, intern or independent contractor of the Business, including, without limitation, any claim relating"
"employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, fringe or pension or profit sharing benefits for any period relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior to the Closing Date, provided, however, that Buyer shall assume all accrued PTO and severance pay obligations for such employees as set forth on Schedule 2.03 of the Disclosure Schedules."
"(a) For a period of two year commencing on the Closing Date (the Restricted Period), Seller shall not directly or indirectly, (i) engage in or assist others in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 1% or more of any class of securities of such Person."
"(c) Seller acknowledges that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond)."
"Section 6.16 Registration of Consideration Shares. The Buyer shall use its best efforts to register the resale of the Consideration Shares under the Securities Act in accordance with the terms of the Registration Rights Agreement. The shares of Consideration Shares to be issued by the Buyer in accordance with this Agreement are being issued in a transaction exempt from registration under the Securities Act, by reason of Section 4(a)(2) thereof and/or Regulation D promulgated thereunder (a Private Placement) and, therefore, may not be re-offered or resold other than in conformity with the registration and/or qualification requirements of the Securities Act and other applicable State blue sky securities laws and regulations or pursuant to an exemption therefrom. The certificates issued by Buyer with respect to the Consideration Shares issued hereunder shall be legended to the effect described above and shall include such additional legends as necessary to comply with applicable U.S. federal securities laws, State blue sky securities laws and such other restrictions as shall be set forth in the Lock Up Agreement. Buyer shall use commercially"
"(g) Seller shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby. Seller shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this"
"(d) any Third Party Claim based upon, and solely to the extent resulting from or arising out of the business, operations, properties, assets or obligations of Seller or any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date."
"Section 10.08 No Third-party Beneficiaries. Except as provided in Section 5.08(b), Section 6.16 and Article VIII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement."
"Section 10.09 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege."
"(a)Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. The Purchasers execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Purchasers certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) 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 Purchaser is subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or affected."
"(l)the Noteholders shall have received such other documents and certificates as the Noteholder or their special counsel may reasonably request relating to any legal matters relating to the Company or any of its Subsidiaries, this First Amendment, the Intercreditor Agreement or the Collateral Documents, all in form and substance satisfactory to the Noteholders and their counsel; and"
"(b)The representations and warranties of each Subsidiary Guarantor in the Subsidiary Guaranty Agreement shall be correct when made and at the time of the Closing (except to the extent the same relate to an earlier date, in which case they shall have been correct (or, if not qualified by a standard of materiality, correct in all material respects) as of such earlier date)."
"Section5.4.Organization and Ownership of Shares of Subsidiaries; Affiliates.(a)Schedule 5.4 contains (except as noted therein) complete and correct lists (i)of the Companys Subsidiaries, showing, as to each Subsidiary, whether such Subsidiary is an Original Subsidiary Guarantor, the correct name thereof, the jurisdiction of its organization or formation, and the percentage of shares, interests or units of each class of its Capital Stock outstanding and owned by the Company and each other Subsidiary and (ii)of the Companys Affiliates, other than Subsidiaries."
"Section5.6.Compliance with Laws, Other Instruments, Etc.Neither the execution, delivery and performance by the Company of this Agreement and the Notes nor the execution, delivery and performance of the Subsidiary Guaranty Agreement by the Original Subsidiary Guarantors will (a)contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, articles of formation, partnership agreement, operating agreement, corporate charter or by-laws, or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b)conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c)violate any provision of any statute or other ruleor regulation of any Governmental Authority applicable to the Company or any Subsidiary except in the cases of clauses (a), (b)and (c)such contraventions, breaches, defaults, conflicts and violations which could not reasonably be expected to have a Material Adverse Effect."
"Section5.8.Litigation; Observance of Agreements, Statutes and Orders.(a)Except as disclosed in Schedule 5.8, there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect."
"Section5.13.Private Offering by the Company.Neither the Company nor anyone authorized to act on its behalf has offered the Notes or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 65 other Institutional Investors, each of which has been offered the Notes at a private sale for investment.Neither the Company nor anyone authorized to act on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of Section5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.For purposes of this Section5.13 and Section6.1 only, each reference to the Notes shall be deemed to include a reference to the Subsidiary Guaranty Agreement."
"Section5.22.Liens.There are no Liens of any nature whatsoever on any assets of the Company or any Subsidiary Guarantor other than:(a)Liens granted pursuant to the Collateral Documents, (b)other Liens in existence on the date of the First Amendment as reflected on Schedule 10.2, (c)Permitted Liens and (d)such other Liens as permitted by the Collateral Documents."
"Section5.25.Mining Facilities.Each of the Company and each Subsidiary Guarantor has an undivided fee simple title to the real property interest (including interests in surface and/or coal mining rights) or a leasehold interest in an undivided interest in the real property interest (including interests in surface and/or coal mining rights) together with no less than those real properties, easements, licenses, privileges, rights and appurtenances as are necessary to mine, remove, process and transport coal in the manner operated at such time (subject only to Permitted Encumbrances and such other Liens as permitted by the Collateral Documents) to all active Mining Facilities covered by outstanding permits, approvals, consents, franchises, licenses or similar authorizations issued by a Governmental Authority to the Company or such Subsidiary Guarantor to the extent necessary to conduct its business as currently conducted and to utilize such properties for their intended purpose. Schedule 5.25 accurately describes in all material respects all Mining Facilities owned, leased or operated by the Company and its Subsidiaries as of the date of the First Amendment, including the location of such Mining Facilities and indicates which Mining Facilities are active or inactive.Neither the Company nor any of its Subsidiaries own, as of the date of the First Amendment, support operations that are material to the operation of the active Mining Facilities that are not listed on the portion of Schedule 5.26 labeled Other (the properties labeled Other on such Schedule 5.26, collectively, the Other Facilities)."
"(d)the Source constitutes assets of an investment fund (within the meaning of PartV of the QPAM Exemption) managed by a qualified professional asset manager or QPAM (within the meaning of PartV of the QPAM Exemption), no employee benefit plans assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of SectionV(c)(l)of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed (i)20% of the total client assets managed by such QPAM, or (ii)10% of the assets of the investment fund, the conditions of Parts 1(c), (d), (f)and (g)of the QPAM Exemption are satisfied, and as of the last day of its most recent calendar quarter, the QPAM does not own a 10% or more interest in the Company and no Person controlling or controlled by the QPAM (applying the definition of control in SectionV(e)of the QPAM Exemption) owns a 20% or more interest in the Company (or less than 20% but greater than 10%, if such person exercises control over the management or policies of the Company by reason of its ownership interest) and (i)the identity of such QPAM and (ii)the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Company in writing at least five (5)Business Days prior to the date this representation is made pursuant to this clause (d); or"
"(e)the Source constitutes assets of a plan(s) (within the meaning of SectionIV of PTE 96-23 (the INHAM Exemption)) managed by an in-house asset manager or INHAM (within the meaning of PartIV of the INHAM Exemption), the conditions of Parts I(a), (c), (d), (g)and (h)of the INHAM Exemption are satisfied, neither the INHAM nor a Person controlling or controlled by the INHAM (applying the definition of control in SectionIV(d)of the INHAM Exemption) owns a 5% or more interest in the Company and (i)the identity of such INHAM and (ii)the name(s)of the employee benefit plan(s)whose assets constitute the Source have been disclosed to the Company in writing at least five (5)Business Days prior to the date this representation is made pursuant to this clause (e); or"
"(d)Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section8.4 shall be at 100% of the principal amount of such Notes, together with interest on such Notes accrued to the date of prepayment, but without Make-Whole Amount or other premium. The prepayment shall be made on the Proposed Prepayment Date."
"Section9.1.Compliance with Law.The Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rulesor regulations to which each of them is subject, including, without limitation, ERISA, Environmental Laws, the USA Patriot Act and the other laws and regulations that are referred to in Section5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rulesor regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"have become due and payable that have or might become a Lien on properties or assets of the Company or any Subsidiary; provided that neither the Company nor any Subsidiary need pay any such tax, assessment, charge, levy or claim if (a)the amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary or (b)the nonpayment of all such taxes, assessments, charges, levies and claims in the aggregate could not reasonably be expected to have a Material Adverse Effect."
"(iv)a certificate executed by a Responsible Officer of the Company summarizing, in reasonable detail, the current and historical practices of the Company and its Subsidiaries with respect to obtaining title opinion letters for its mining tracts, along with an exhibit containing representative title opinion letters previously obtained by the Company or its Subsidiaries with respect to mining tracts within their active Mining Facilities (such summary, together with such exhibit, the Title Practices Certificate), which Title Practices Certificate shall be in form and substance reasonably acceptable to the Collateral Agent;"
"(viii)UCC financing statements, including without limitation, UCC fixture filings and As-Extracted Collateral (as defined in the Security Agreement) filings on the Mortgaged Properties in form appropriate for filing under the UCC of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages;"
"(d)non-recourse Liens upon or in real property or equipment acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or equipment or to secure non-recourse, tax-exempt Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property or equipment to be subject to such Liens, or Liens existing on any such property or equipment at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any property other than the property or equipment being acquired, constructed or improved, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;"
"(vi)any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt or other Debt permitted under this Section10.3 (other than Debt under the Bank Facility); provided that the principal amount of such Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing; provided, further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are consistent with prudent business practice and incurred in the ordinary course of business;"
"Section10.20.Economic Sanctions, Etc.The Company will not, and will not permit any Controlled Entity to (a)become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b)directly or indirectly have any investment in or engage in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (i)would cause any holder or any affiliate of such holder to be in violation of, or subject to sanctions under, any law or regulation applicable to such holder, or (ii)is prohibited by or subject to sanctions under any U.S. Economic Sanctions Laws."
"Section17.4.Notes Held by Company, Etc.Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement, the Notes or the Subsidiary Guaranty Agreement, or have directed the taking of any action provided herein or in the Notes or the Subsidiary Guaranty Agreement to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates or Subsidiaries shall be deemed not to be outstanding."
"Acceptable Bank means (i)any bank or trust company (a)which is organized under the laws of the United States of America or any State thereof, (b)which has capital, surplus and undivided profits aggregating at least $500,000,000, and (c)(1)whose long-term unsecured debt obligations (or the long-term unsecured debt obligations of the holding company owning all of the capital stock of such bank or trust company) shall have been given a rating of AA- or better by S&P, Aa3 or better by Moodys or an equivalent rating by any other credit rating agency of recognized national standing or (2)the commercial paper or other short-term unsecured debt obligations of which (or the short-term unsecured debt obligations of the holding company owning all of the capital stock of such bank or trust company) shall have been given a rating of A1 or better by S&P or Prime 1 or better by Moodys or an equivalent rating by any other credit rating agency of recognized national standing or (ii)any bank party to the Bank Facility."
"Additional Default shall mean any provision contained in the Bank Facility, including any defined terms as used therein, which permits the holder or holders of any Debt under the Bank Facility or any agent or trustee for such holder or holders to accelerate (with the passage of time or giving of notice or both) the maturity thereof or otherwise require the Company or any Subsidiary to purchase such Debt prior to the stated maturity thereof (or automatically causes such Debt to so accelerate or be required to be purchased) and which either (i)is similar to any Default or Event of Default contained in Section11, or related definitions in this Schedule B, but contains one or more percentages, amounts, formulas or other provisions that are more restrictive as to the Company or any Subsidiary, have a shorter grace period or are more beneficial to the holders of such Debt than as set forth herein (and such provision shall be deemed an Additional Default only to the extent that it is more restrictive, has a shorter grace period or is more beneficial) or (ii)is different from the subject matter of any Default or Event of Default contained in Section11, or related definitions in this Schedule B."
"(e)commercial paper maturing in 270 days or less from the date of issuance which, at the time of acquisition by the Company or any Subsidiary, is rated A-l or better by S&P or P-1 or better by Moodys or an equivalent rating by any other credit rating agency of recognized national standing."
"(b)any aggregate net gain or loss during such period arising from the sale, conversion, exchange or other disposition of capital assets (such term to include, without limitation, (i)all non-current assets, and, without duplication, (ii)the following, whether or not current:all fixed assets, whether tangible or intangible, all inventory sold in conjunction with the disposition of fixed assets, and all Securities);"
"Material Adverse Effect means a material adverse effect on (a)the business, operations, affairs, financial condition, assets, or properties of the Company and its Subsidiaries taken as a whole, (b)the ability of the Company to perform its payment obligations or its obligations under Sections 9 or 10 or any other material obligations under this Agreement, the Notes or any other Note Document, (c)the ability of the Subsidiary Guarantors, taken as a whole, to perform their payment obligations or other material obligations under the Subsidiary Guaranty Agreement or any other Note Document, or (d)the validity or enforceability of this Agreement, the Notes, the Subsidiary Guaranty Agreement or any other Note Document."
"(d)any attachment or judgment Lien for the payment of money in an aggregate amount not to exceed $10,000,000; provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary; and"
"Solvent or Solvency means, with respect to any Person on a particular date, that on such date (a)the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b)the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c)such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Persons ability to pay such debts and liabilities as they mature and (d)such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Persons property would constitute an unreasonably small capital.The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability."
"THIS AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT (this Guaranty) is dated as of January27, 2017 and is made by the Persons listed on the signature pageshereof under the caption Subsidiary Guarantors and the Additional Guarantors (as defined in Section7(b)) (such Persons so listed and the Additional Guarantors being, collectively, the Guarantors and, individually, each a Guarantor) in favor of the Noteholders (as defined below)."
"Each Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations shall remain unpaid, such Guarantor will perform and observe, and cause each of its Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth in the Note Documents on its or their part to be performed or observed or that the Company has agreed to cause such Guarantor or such Subsidiaries to perform or observe."
"(a)Without limitation of any other Guaranteed Obligations of any Guarantor or remedies of the Noteholders under this Guaranty, each Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Noteholder and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an Indemnified Party) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of any Note Party enforceable against such Note Party in accordance with their terms."
"(b)The undersigned hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or any federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty Supplement, the Subsidiary Guaranty or any of the other Note Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the undersigned hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court.The undersigned agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.Nothing in this Guaranty Supplement or the Subsidiary Guaranty or any other Note Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty Supplement, the Subsidiary Guaranty or any of the other Note Documents to which it is or is to be a party in the courts of any other jurisdiction."
"1.Note Purchase Agreement, dated as of August16, 1999 (the 1999 Note Purchase Agreement), by and among the Company and each of the purchasers of the Companys 8.31% senior notes due August20, 2014, amortizing in years 2005 through 2014 at $18,000,000 annually, in an original aggregate principal amount of $180,000,000, plus accrued interest and fees.The aggregate unpaid principal amount of such Senior Notes as of the date of the Closing is equal to $126,000,000."
"(Mettiki-1-L) (Sincell) Lease dated January1, 1975, by and between Western Maryland Company and MAPCO Inc., a Memorandum of which is recorded Liber No.376, Page294; assigned to Mettiki Coal Corporation pursuant to Assignment dated October19, 1976 and of record in Liber No.376, Page298; as modified and amended by First Amendment to Lease effective February20, 1983 by and between Western Maryland Company and MAPCO Inc., and of record in Liber No.435, Page476, all in the Land Records of Garrett County, Maryland, as amended by (a)letter agreement dated December20, 2002; (b)Letter Agreement dated September18, 2003; (c)Agreement dated June6, 1995, by and between Western Pocahontas Properties Ltd. Partnership and Mettiki Coal Corporation; (d)Mutual Partial Release dated November16, 1992 by and between Western Pocahontas Properties Limited Partnership and Mettiki Coal Corporation; (e)Lease Amendment dated April1, 2004. Mettiki Coal Corporation"
"C. The Company has authorized a new series of Convertible Notes of the Company designated as 12% Senior Convertible Promissory Notes (the Convertible Notes), the terms of which are set forth in the 12% Senior Convertible Promissory Note in the form attached hereto as Exhibit A (together with any Convertible Notes issued in replacement thereof in accordance with the terms thereof, which Convertible Notes shall be convertible into Common Stock (such shares of Common Stock issuable pursuant to the terms of the Convertible Notes, including, without limitation, upon conversion or otherwise, collectively, the Conversion Shares), in accordance with the terms of the Convertible Notes."
"(a) Organization; Validity; Enforcement. Such Buyer is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer and constitutes the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with its terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors rights and remedies."
"(y) Valid Issuance of the Convertible Notes, and Underlying Shares, Etc. The Convertible Notes have been duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens and all restrictions on transfer other than those expressly imposed by the federal securities laws and vest in the Purchasers full and sole title and power to the Convertible Notes purchased hereby by the Purchasers, free and clear of all Liens, and restrictions on transfer other than those imposed by the federal securities laws. All Conversion Shares, when issued pursuant to conversion of the Convertible Notes, will be duly and validly issued, fully paid and nonassessable, will be free and clear of all Liens and vest in the holder full and sole title and power to such securities. The Company has reserved from its duly authorized unissued Common Stock, the Required Reserve Amount, which Required Reserve Amount shall be continuously determined by the Company to ensure that the Required Reserve Amount is in reserve with the Transfer Agent at all times. The Convertible Notes and Conversion Shares, shall sometimes be collectively referred to as the Securities."
"Organizational Documents shall mean (a) the articles or certificate of incor-poration and the bylaws of a corporation; (b) the partnership agree-ment and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partner-ship of a limited partnership; (d) any charter or similar document adopted or filed in connection with the creation, formation, or organi-zation of a Person; and (e) any amendment to any of the foregoing."
"If the average during any 7 day period during the first year following the second stock issuance, the Market Value of the Stock of Purchaser owned by Seller is less than $550,000 (which amount represents the minimum target Market Value of the Stock by Seller immediately following the issuance of the Stock), then Purchaser will issue to Seller that additional number of common stock of Purchaser, on the one year anniversary date, to increase the Market Value of the total outstanding shares of Stock of Purchaser owned by Seller (First Stock Issuance and Second Stock Issuance combined) to $550,000, without the payment of any additional consideration."
"(v) such other documents as Seller may reasonably request for the purpose of (A) evidencing the accuracy of any representation or warranty of Purchaser, (B) evidencing the performance by Purchaser of, or the compliance by Purchaser with, any covenant or obligation required to be performed or complied with by Purchaser, (C) evidencing the satisfaction of any condition referred to in Article 9, or (D) otherwise facilitating the consummation of any of the Contemplated Transactions."
"(a) Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada, with full corporate power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under Applicable Contracts. Seller is duly qualified to do business as a foreign corporation under the laws of each country, state, province, territory or other jurisdiction in which it owns or leases any real or personal property or has employees."
"Except as set forth in Schedule 4.2 of the Disclosure Memorandum, Seller neither is nor shall be required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions."
"4.6 Title to Properties; Encumbrances. Seller owns all the properties and assets (whether tangible or intangible) that it purports to own and that comprise the Assets, including all of the properties and assets reflected in the Balance Sheet (except for assets held under capitalized leases listed on Schedule 4.6 of the Disclosure Memorandum and personal property sold since the date of the Balance Sheet in the Ordinary Course of Business), and all of the properties and assets purchased or otherwise acquired by Seller since the date of the Balance Sheet (except for personal property acquired and sold since the date of the Balance Sheet in the Ordinary Course of Business and consistent with past practice). All Assets are free and clear of all Encumbrances."
"4.7 Accounts Receivable. All accounts receivable of Seller that are reflected on the Balance Sheet or on the account-ing records of Seller as of the Closing Date that pertain to the Assets (collectively, the Accounts Receivable) represent or shall represent valid obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. The Accounts Receivable reflected as of the Closing Date shall not represent a material adverse change in the composition of such Accounts Receivable in terms of aging. Subject to the reserves set forth in the accounting records of Seller which reserve shall not constitute a greater percentage of Accounts Receivable on the Closing Date than the reserve on the Balance Sheet constituted of the Accounts Receivable reflected thereon, each of the Accounts Receivable either has been or shall be collected in full, without any set-off, within ninety days after the day on which it first becomes due and payable. There is no contest, claim, or right of set-off, other than returns in the Ordinary Course of Business, under any Contract with any obligor of an Account Receivable relating to the amount or validity of such Accounts Receivable. Schedule 4.7 of the Disclosure Memorandum contains a complete and accurate list of all Accounts Receivable as of the date of the Balance Sheet, which list sets forth the aging of such Accounts Receivable."
"(a) Seller is, and at all times has been, in full compliance with all applicable Environmental Laws and has not received notice from any person, including any Governmental Body, of any actual or potential violation of any Environ-mental Law with respect to any of the Facilities or any other properties or assets in which Seller has an interest."
"(e) No Registration. Seller understands that it must bear the economic risk of its investment in Purchaser for an indefinite period of time. Seller further understands that (i) neither the offering nor the sale of the Stock has been registered under the Securities Act or any applicable State Acts or securities laws of other applicable jurisdictions in reliance upon exemptions from the registration requirements of such laws, (ii) the Stock must be held by Seller indefinitely unless the sale or transfer thereof is subsequently registered under the Securities Act and any applicable State Acts, or an exemption from such registration requirements is available, (iii) Purchaser is not hereby under an obligation to register any of the Stock on Sellers behalf or to assist Seller in complying with any exemption from registration, and (iv) Purchaser will rely upon the representations and warranties made by Seller in this Agreement in order to establish such exemptions from the registration requirements of the Securities Act and any applicable State Acts or securities laws of other applicable jurisdictions."
"5.1 Organization and Good Standing. Purchaser is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. Purchaser has full corporate power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use."
"5.3 Purchaser Common Stock. The Stock to be issued in connection with the payment of the Purchase Price, when issued and delivered in accordance with this Agreement, shall be duly authorized, validly issued, fully paid, and non- assessable. Not later than one day after the Closing Date, Purchaser shall have caused 200,000 shares of the Stock to be registered in the name of Seller. Purchaser shall cause such additional shares of the Stock as may be required to be issued pursuant to Section 2.4 to be issued, represented by a certificate and registered in the name of Seller 90 days after the Closing Date."
"(b) use its Best Efforts to preserve intact the current business organization of Seller and VitaCBD Brand, keep available the services of the current officers, employees, and agents of Seller and VitaCBD Brand, and maintain the relations and good shall with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with Seller and VitaCBD Brand;"
"(ii) directly or indirectly, either for itself or any other Person, (i) induce or attempt to induce any employee of Purchaser to leave the employ of the Purchaser, (ii) in any way interfere with the relationship between Purchaser and any employee of Purchaser, (iii) employ, or otherwise, any employee of Purchaser, or (iv) induce or attempt to induce any customer, supplier, licensee, or business relation of the Purchaser related to the Business to cease doing business with the Purchaser, or in any way interfere with the relationship between any customer, supplier, licensee, or business relation of the Purchaser with respect to the Business."
"(i) directly or indirectly, engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be associated with, or in any manner connected with, or render services or advice to, any company whose products or activities compete in whole or in part with the products or activities of the Seller with respect to the Business anywhere in the world. Seller agrees that this covenant is reasonable with respect to its duration, geographical area, and scope; or"
"Each of the representations and warranties of Seller in this Agreement must have been accurate in all mate-rial respects as of the date of this Agreement, and must be accurate in all material respects as of the Closing Date as if made on the Closing Date, without giving effect to any supplement to the Disclosure Memorandum."
"(b) any misrepresentation or Breach of any representation or warranty made by Seller in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Memorandum, other than any such Breach that is disclosed in a supplement to the Disclosure Memorandum and is expressly identified in the certificate delivered pursuant to Section 3.2(a)(ii) as having caused the condition specified in Section 8.1 not to be satisfied;"
"The remedies provided in this Section 11.2 shall be exclusive of any other financial remedies that may be available to Purchaser or the other Indemnified Persons with respect to any Breach of any representation, warranty, or covenant set forth in this Agreement, the Disclosure Memorandum, any supplement to the Disclosure Memorandum, or any other certificate or document delivered pursuant to this Agreement, except for rights to specific performance and similar remedies not involving the payment of damages."
"(b) If any Proceeding referred to in paragraph (a) above is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party shall be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide rea-sonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party shall not, as long as it diligently conducts such defense, be liable to the indemnified party under this Article 11 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it shall be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settle-ment of such claims may be effected by the indemnifying party without the indemnified partys consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnified party shall have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified partys notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party shall be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party."
"4\. Agency. Seller agrees to execute, as soon as is reasonably practical, such further grants, instruments, and assignments as Buyer may request from time to time (a) to collect, assert or enforce any claim, right, interest or title of any kind in and to the Assets, and to institute and prosecute all actions, suits and proceedings which Buyer may deem proper in order to collect, assert or enforce any such claim, right, interest or title, (b) to do all such acts and things and take all such actions in respect thereof as Buyer shall deem advisable or proper in order to provide to Buyer the benefits under any such Assets and (c) to defend, settle or compromise any and all actions, suits or proceedings in respect of any such Assets in accordance with the provisions of the Purchase Agreement."
"b.Listing. The Company shall promptly secure the listing of the Conversion Shares upon each national securities exchange or automated quotation system, if any, upon which shares of Common Stock are then listed (subject to official notice of issuance) and, so long as the Buyer owns any of the Note Securities, shall maintain, so long as any other shares of Common Stock shall be so listed, such listing of all Conversion Shares from time to time issuable upon conversion of the Note. The Company will obtain and, so long as the Buyer owns any of the Securities, maintain the listing and trading of its Common Stock on the OTC MARKETS or any equivalent replacement market, the Nasdaq stock market (Nasdaq), the New York Stock Exchange (NYSE), or the American Stock Exchange (AMEX) and will comply in all respects with the Companys reporting, filing and other obligations under the bylaws or rules of the Financial Industry Regulatory Authority (FINRA) and such exchanges, as applicable. The Company shall promptly provide to the Buyer copies of any notices it receives from the OTC MARKETS and any other markets on which the Common Stock is then listed regarding the continued eligibility of the Common Stock for listing on such markets."
"g.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither the Company nor the Buyer shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other. Notwithstanding the foregoing, the Buyer may assign its rights hereunder to any qualified person, any permitted assigns, or prospective transferee that acquires or purchases Note Securities in a private transaction from the Buyer or to any of its affiliates, as that term is defined under the 1934 Act, without the consent of the Company with Buyers Opinion of Counsel. A qualified person is an accredited investor transferee, assignee, or purchaser of the Note who succeeds to the Holders right, title and interest to all or a portion of the Note accompanied with an Opinion of Counsel as provided for in Section 2(f)."
"i.Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred."
"At the time of a Subsequent Equity Financing, investors in this Offering will have an exchange right to either: (a) retain the securities purchased in this Offering or subsequently acquired in a Subsequent Equity Financing into which they had previously exchanged, or (b) exchange the securities purchased in this Offering or in a Subsequent Equity Financing into which they had previously exchanged into the next Subsequent Equity Financing (assuming the next Subsequent Equity Financing is one for which an exchange right is available)."
"(e) Title. The Company and the Companys subsidiaries, if any, own and have good and marketable title in fee simple absolute to, or a valid leasehold interest in, all their respective real properties and good title to their other respective assets and properties. Such assets and properties are subject to no liens or encumbrances."
"(f) Intellectual Property. The Company and the Companys subsidiaries, if any, own or possess sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property rights necessary for its business as now conducted and as proposed to be conducted, without any conflict with, or infringement of, the rights of others. Since March 22, 2013, each employee of the Company has executed, or will execute, a confidential information and invention assignment agreement in favor of the Company. Since March 22, 2013, the Company has entered into, or intends to enter into, an agreement containing appropriate confidentiality and invention assignment provisions in favor of the Company with each consultant to the Company that has or will have access to the Companys intellectual property."
"(f) Assignment. The rights, interests or obligations hereunder and under the Warrants may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of a Majority in Interest of Investors. The rights, interests or obligations hereunder and under the Warrants may not be assigned by any Investor without the prior written consent of the Company."
"The Company is obligated under Convertible Notes issued from November 5, 2014 through and including February 2, 2015, aggregating principal amounts totaling $579,500 and bearing interest of 10% per annum and maturing on September 15, 2016. As of September 15, 2016 there was $276,000 of original principal plus accrued interest of 53,261 for a total of $329,261 due. As of September 30, 2016, outstanding notes and accrued interest became due and payable. In October 2016, as reported on Forms 8-K, certain noteholders notified the Company that such noteholders notes were in default changing the interest rate from 10% to 12% on such defaulted notes."
"Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Common Stock and Warrant Purchase Agreement, dated as of [_____], 201[ ] (the Purchase Agreement), among the Company and the Investors. This is one of the Warrants referred to in the Purchase Agreement."
"i) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate."
"## a. Purchase and Sale. Subject to the terms and conditions of this Agreement, the Purchaser agrees to purchase from AVRS, and AVRS agrees to sell to the Purchaser, 600,000 shares of the common stock of AVRS, referred to as the Shares. This agreement does not apply to, and no referral fee shall be owed in connection with any proposed consultant agreements."
"## b. Due Authorization. All corporate action on the part of AVRS necessary for the authorization, execution and delivery of the Agreement and the performance of the obligations of AVRS hereunder, and the authorization, issuance, sale and delivery of the Shares has been taken, and this Agreement constitutes a valid and legally binding obligation of AVRS, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies."
"## d. Investment Experience. The Purchaser is an investor in speculative securities with companies that have no revenue or profits and lack liquidity and capital resources and has such knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the risks of the investment in the Shares. The Purchaser confirms that he is able to bear the economic risk of an investment in the Shares and is able to afford a complete loss of such investment."
(e) No Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
"(c) Issuance of Securities. The issuance of the Offered Notes is duly authorized and, upon issuance in accordance with the Transaction Documents, the Offered Notes shall be validly issued and free from all preemptive or similar rights, taxes, liens and charges and other encumbrances with respect to the issue thereof. As of the date of the Stockholder Approval, a number of shares of Common Stock shall have been duly authorized and reserved for issuance which equals or exceeds (the Required Reserved Amount) 120% of the maximum number of Conversion Shares issued and issuable pursuant to the Offered Notes based on the Conversion Price (as defined in the Offered Notes) (without taking into account any limitations on the issuance thereof pursuant to the terms of the Offered Notes) as of the Trading Day (as defined in the Offered Notes) immediately preceding the applicable date of determination. As of the date hereof, there are 69,953,636 shares of Common Stock authorized and unissued. Upon conversion of the Offered Notes in accordance with the Offered Notes, the Conversion Shares will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens and charges and other encumbrances with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. Assuming the accuracy of each of the representations and warranties set forth in Section 2 of this Agreement, the offer and issuance by the Company of the Securities is exempt from registration under the 1933 Act."
"(e) Consents. Other than the Required Filings, neither the Company nor any of its Subsidiaries is required to obtain any consent, authorization or order of, or make any filing or registration with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents, in each case in accordance with the terms hereof or thereof (other than such consents and approvals to be obtained on or prior to the Closing Date). All consents, authorizations, orders, filings and registrations which the Company or any of its Subsidiaries is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the Closing Date (or in the case of the Required Filings, will be made timely after the Closing Date as applicable), and the Company and its Subsidiaries are unaware of any facts or circumstances that might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings pursuant to the preceding sentence. The Company is not in violation of the requirements for continued qualification of the Principal Market and has no knowledge of any facts or circumstance that would reasonably lead to removal of the Common Stock from quotation on the Principal Market in the foreseeable future. The issuance by the Company of the Securities shall not have the effect of removing the Common Stock from quotation on the Principal Market."
"(f) Acknowledgment Regarding Buyers Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of an arms length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that the Buyer is not (i) an officer or director of the Company or any of its Subsidiaries, (ii) an affiliate of the Company or any of its Subsidiaries (as defined in Rule 144) or (iii) to the knowledge of the Company, a beneficial owner of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the 1934 Act)). The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by the Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyers purchase of the Securities. The Company further represents to the Buyer that the Companys decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives."
"(g) No General Solicitation; Placement Agents Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agents fees, financial advisory fees, or brokers commissions (other than for Persons engaged by the Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Buyer harmless against, any liability, loss or expense (including, without limitation, attorneys reasonable and documented fees and out-of-pocket expenses) arising in connection with any such claim. Neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection with the sale of the Securities."
"(o) Foreign Corrupt Practices. Neither the Company, nor any of its Subsidiaries, nor any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee."
"(cc) Internal Accounting and Disclosure Controls. Except as disclosed in Schedule 3(cc), the Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with managements general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Except as disclosed in Schedule 3(cc), the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Companys management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. During the twelve months prior to the date hereof neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant relating to any material weakness, other than those material weaknesses disclosed in Schedule 3(cc), in any part of the system of internal accounting controls of the Company or any of its Subsidiaries."
"(e) Financial Information. The Company agrees to send the following to each Investor during the Reporting Period, unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, (i) within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K, any Quarterly Reports on Form 10-Q, any Current Reports on Form 8-K (or any analogous reports under the 1934 Act) and any registration statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, and (ii) copies of any notices and other information made available or given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders. As used herein, Business Day means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed."
"(a) Register. The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Offered Notes in which the Company shall record the name and address of the Person in whose name the Offered Notes have been issued (including the name and address of each transferee), the principal amount of Offered Notes held by such Person, and the number of Conversion Shares issuable pursuant to the terms of the Offered Notes. The Company shall keep the register open and available at all times during regular business hours for inspection at reasonable times by the Buyer or its legal representatives."
"(b) Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent, and any subsequent transfer agent, in the form of Exhibit F attached hereto (the Irrevocable Transfer Agent Instructions) to issue certificates or, to the extent permitted by applicable securities laws, credit shares to the applicable balance accounts at DTC, registered in the name of the Buyer or its respective nominee(s), for the Conversion Shares issuable upon conversion of the Offered Notes in such amounts as specified from time to time by the Buyer to the Company upon conversion of the Offered Notes. The Company warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b), and stop transfer instructions to give effect to Section 2(f) hereof, will be given by the Company to its transfer agent, and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities in accordance with Section 2(f), the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or, to the extent permitted by applicable securities laws, credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by the Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves the Conversion Shares sold, assigned or transferred pursuant to an effective registration statement or pursuant to Rule 144, the transfer agent shall issue such Securities to the Buyer, assignee or transferee, as the case may be, without any restrictive legend. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required."
"(iii) The Company shall have delivered to the Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entitys jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) Trading Days of the Initial Closing Date or the Additional Closing Date, as the case may be."
" | If to the Company: ---|---  |  |   |  | Enerpulse Technologies, Inc.  |  | 2451 Alamo Ave. NE,  |  | Albuquerque, New Mexico 87106  |  | Telephone: | (505) 842-5201  |  | Facsimile: | (505) 213-0013  |  | Attention: | Bryan Templeton,  |  |  | Chief Financial Officer  |  | Email: | btempleton@enerpulse.com  |  |   | With a copy to:  |  |   |  | Troutman Sanders LLP  |  | 875 Third Avenue  |  | New York, NY 10022  |  | Telephone: | (212) 704-6249  |  | Facsimile: | (212) 704-5900  |  | Attention: | Aurora Cassirer, Esq.  |  | E-mail: | acasirer@troutmansanders.com  |  |   | If to the Transfer Agent:  |  |   |  | Securities Transfer Corporation  |  | 2591 Dallas Parkway, Suite 102  |  | Frisco, Texas 75034  |  | Telephone: (469) 633-0101  |  | Facsimile: (469) 633-0088  |  | Attention: Christina Shelton, Original Issuance Department  |  | E-mail: shelton@stctransfer.com "
"(i) Survival. Unless this Agreement is terminated under Section 8, the representations and warranties of the Company and the Buyer contained in Sections 2 and 3, and the agreements and covenants set forth in Sections 4, 5 and 9 shall survive the Closing. The Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder."
"all Documents related to the Business or to the Purchased Intellectual Property. ---|--- 2.2 Excluded Assets. Nothing herein shall be deemed to sell, transfer, assign or convey the Excluded Assetswhich are all assets of the Sellers that are not Purchased Assets (""Excluded Assets"")to Purchasers, and Sellers shall retain all right, title and interest to, in and under the Excluded Assets. Excluded Assets include those assets identified in Schedule 2.2."
"Neither the Purchased Assets nor conducting the Business infringes, is a misappropriation of, or violates any intellectual property right of any third Person, and no such claim (i) has ever been threatened or asserted, or (ii) is pending against Sellers. And there are no facts or circumstances, in relation to the Purchased Assets or conducting the Business, that would reasonably form the basis for any claim of infringement, misappropriation, or other violation of any intellectual property right of any third Person ---|--- (c)"
"5.11 No Further Representations. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, THE PARTIES AGREE THAT NEITHER PURCHASERS NOR SELLERS NOR ANY OF THEIR AFFILIATES OR REPRESENTATIVES HAVE MADE OR ARE MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL. FOR THE SAKE OF CLARITY AND, AGAIN, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN THIS AGREEMENT, SELLERS HAVE MADE NO IMPLIED REPRESENTATION OR WARRANTY TO PURCHASERS AS TO THE CONDITION, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PURCHASED ASSETS."
"The covenants and undertakings contained in this Section 7.1 relate to matters which are of a special, unique and extraordinary character, and a violation or threatened violation of any of the terms of this Section 7.1 will cause irreparable injury to the Purchasers, the amount of which cannot be adequately compensated. Therefore, Purchasers will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any actual or threatened breach of this Section 7.1. The rights and remedies provided by this Section 7.1 are cumulative and in addition to any other rights and remedies which Purchasers may have hereunder or at law or in equity. In the event that Purchasers were to seek damages for any breach of this Section 7.1, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. ---|--- (d)"
"13.5 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), or (ii) one business day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):"
"13.7 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either Sellers or Purchasers (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void; except Purchasers may assign this Agreement and any or all rights or obligations hereunder (including, without limitation, Purchasers' rights to purchase the Purchased Assets and Purchasers' rights to seek indemnification hereunder) to any Affiliate of Purchasers."
"THIS WAIVER AND FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this Amendment) is entered into effective as of December29, 2016 (the Fifth Amendment Effective Date), among SOUTHCROSS ENERGY PARTNERS, L.P., a Delaware limited partnership (the Borrower), WELLS FARGO BANK, N.A., a national banking association, as the Administrative Agent (the Administrative Agent), and the undersigned Lenders (as defined below) (the Consenting Lenders). Unless otherwise defined herein, all capitalized terms used herein that are defined in the Credit Agreement referred to below shall have the meanings given such terms in the Credit Agreement, as amended hereby."
"other legal representatives violates the foregoing covenant, such Person, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Released Party may sustain as a result of such violation, all attorneys fees and costs incurred by any Released Party as a result of such violation."
"| | ---|---|--- CONSENTED. ACKNOWLEDGED AND AGREED TO BY: SOUTHCROSS ENERGY OPERATING, LLC SOUTHCROSS ENERGY LP LLC SOUTHCROSS ENERGY GP LLC SOUTHCROSS DELTA PIPELINE LLC SOUTHCROSS PROCESSING LLC SOUTHCROSS ALABAMA PIPELINE LLC SOUTHCROSS NUECES PIPELINES LLC SOUTHCROSS ENERGY FINANCE CORP. FL RICH GAS SERVICES GP, LLC | By: |  |"
"G.In consideration of the premises, the representations, warranties, covenants, and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the satisfaction of each condition precedent set forth in Section6.01 hereof, the Existing Credit Agreement shall be amended and restated as of the Effective Date in the form of this Agreement. The parties hereto further agree as follows:"
"Consolidated Interest Expense means, for any period of determination, the sum (determined without duplication) of the aggregate net interest expense of the Borrower and the Consolidated Subsidiaries for such period (net of intercompany interest income and interest expense among the Borrower and its Consolidated Subsidiaries and net of any other interest income) as determined in accordance with GAAP, including: (a)amortization of debt discount, (b)capitalized interest, (c)expenses directly related to the extinguishment of debt and (d)the portion of any payments or accruals under Capital Leases allocable to interest expense, plus the portion of any payments or accruals under Synthetic Leases allocable to interest expense whether or not the same constitutes interest expense under GAAP."
"(a)the sum, without duplication, of (i)Consolidated Net Income for such fiscal period, (ii)an amount equal to the amount of all non-cash charges to the extent deducted in determining Consolidated Net Income for such fiscal period, (iii)decreases in Working Capital for such fiscal period and (iv)the aggregate amount of non-cash losses on the disposition of Property by the Borrower and its Consolidated Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, minus"
"Excess Cash Liquidity means, as of any date, the sum of (a)Availability on such date (but only to the extent that (i)the Borrower is permitted to borrow such amount under the terms of this Agreement including, without limitation, Section6.02 hereof, and (ii)if such amounts were borrowed, the Borrower would be in pro forma compliance (as set forth in Section 1.05(c)) with all applicable covenants set forth in Section9.01 hereof) plus (b)the amount of Excess Cash on such date."
"Indebtedness means, for any Person, the sum of the following (without duplication): (a)all obligations of such Person for borrowed money or evidenced by bonds, bankers acceptances, debentures, notes or other similar instruments; (b)all obligations of such Person (whether contingent or otherwise) in respect of letters of credit, surety or other bonds and similar instruments; (c)all accounts payable and all accrued expenses, liabilities or other obligations of such Person to pay the deferred purchase price of Property or services, except (i)trade accounts payable of such Person arising in the ordinary course of business if and to the extent that such trade accounts payable are not past due by more than ninety (90)days or that are being contested"
"Interest Payment Date means (a)with respect to any ABR Loan, the last day of each March, June, September and December and (b)with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three months duration after the first day of such Interest Period."
"Issuing Banks means, individually or collectively as the context requires, each of Wells Fargo, Barclays, and UBS AG in their respective capacities as issuers of Letters of Credit hereunder, their respective successors in such capacity as provided in Section 2.07(i), and, if requested by the Borrower and reasonably acceptable to the Administrative Agent, any other Person who is a Lender at the time of such request and who accepts such appointment (it being understood that, if any such Person ceases to be a Lender hereunder, such Person will remain an Issuing Bank with respect to any Letter of Credit issued by such Person that remains outstanding as of the date such Person ceases to be a Lender). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate."
"Section2.03Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a)in the case of a Eurodollar Borrowing, not later than 11:00 a.m., Central time, three (3)Business Days before the date of the proposed Borrowing or (b)in the case of an ABR Borrowing, not later than 11:00 a.m., Central time, one Business Day before the date of the proposed Borrowing; provided that no such notice shall be required for any deemed request of an ABR Borrowing to finance the reimbursement of an LC Disbursement as provided in Section 2.07(e). Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or e-mail to the Administrative Agent of a written Borrowing Request in substantially the form of Exhibit B and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section2.02:"
"therein, (ii)any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii)payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or any Letter of Credit Agreement, or (iv)any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.07(f), constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Banks failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised all requisite care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit."
"then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i)any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii)if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made either as an ABR Borrowing or at an alternate rate of interest determined by the Required Lenders as their cost of funds."
"(iii)Except to the extent required to be applied as a prepayment of the Term Loan Facility in accordance with the Term Loan Agreement, on each date on or after the Effective Date upon which the Borrower or any Subsidiary receives any cash proceeds from any Recovery Event, an amount equal to 100% of the Net Cash Proceeds from such Recovery Event shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 3.04(b)(viii); provided, however, that so long as no Event of Default then exists, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds shall be used to replace or restore any Property in respect of which such Net Cash Proceeds were paid within 180 days following the date of the receipt of such Net Cash Proceeds, and provided, further, that if all or any portion of such Net Cash Proceeds are not so used within 180 days after the date of the receipt of such Net Cash Proceeds (or such earlier date, if any, as the Borrower or relevant Subsidiary determines not to reinvest the Net Cash Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 3.04(b)(iii) without regard to the proviso or the immediately preceding proviso."
"payment of a proportion of the aggregate amount of its Loans and other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i)notify the Administrative Agent of such fact, and (ii)purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that (A)if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (B)the provisions of this Section4.01 shall not be construed to apply to (1)any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (2)any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant. Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation."
"(d)Effect of Failure or Delay in Requesting Compensation. Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section5.01 shall not constitute a waiver of such Lenders or such Issuing Banks right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or such Issuing Bank pursuant to this Section5.01 for any increased costs incurred or reductions suffered more than 365 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders or such Issuing Banks intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 365-day period referred to above shall be extended to include the period of retroactive effect thereof."
"(b)Replacement of Lenders. If any Lender requests compensation under Section5.01, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section5.03, or if any Lender is a Defaulting Lender or a Non- Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.04(b)), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i)the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 12.04(b)(iv), (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Revolving Credit Exposure, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.04(c) or Section5.02), from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section5.01 or payments required to be made pursuant to Section5.03, such assignment will result in a reduction in such compensation or payments thereafter, (iv)such assignment does not conflict with applicable law, and (v)in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Notwithstanding the foregoing, a Lender shall not be required to make any such"
"(a)The Administrative Agent, the Joint Arrangers and the Lenders shall have received all commitment, facility and agency fees and all other fees and amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including, without limitation, the fees and expenses of Vinson& Elkins L.L.P., counsel to the Administrative Agent)."
"(p)Each document (including any Uniform Commercial Code financing statement) required by this Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Excepted Liens and Liens permitted under Section 9.03(h)), shall be in proper form for filing, registration or recordation."
"(w)The Administrative Agent shall have received from the Loan Parties, to the extent requested by the Lenders or the Administrative Agent, evidence reasonably satisfactory to the Administrative Agent that, for any material Building (as defined in the applicable Flood Insurance Regulation) or material Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulation), in each case situated on any Property subjected, or required under the Loan Documents to be subjected, to a Lien pursuant to the Security Instruments, (i)such Loan Party maintains Flood Insurance for such Building or Manufactured (Mobile) Home or (ii)such Building or Manufactured (Mobile) Home is not located in a Special Flood Hazard Area (as defined in the applicable Flood Regulation)."
"(f)neither the Borrower nor any Subsidiary has received any written notice asserting an alleged liability or obligation under any applicable Environmental Laws with respect to the investigation, remediation, abatement, removal, or monitoring of any Hazardous Materials at, under, or Released or threatened to be Released from any real properties offsite the Borrowers or any Subsidiarys Properties and, to the Borrowers knowledge, there are no conditions or circumstances that could reasonably be expected to result in the receipt of such written notice;"
"Section8.09Compliance with Laws. The Borrower will, and will cause each Subsidiary to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"(vi)With respect to any Equity Cure Contribution, solely for the purposes of calculating the Borrowers compliance with clauses (a), (b), (c) and (d)of this Section9.01, as applicable, for each Rolling Period ending after the applicable Equity Cure Test Date that includes the fiscal quarter ending on such Equity Cure Test Date, (A)the Borrower shall be deemed to have received the Equity Cure Amount during the fiscal quarter ending on such Equity Cure Test Date, and (B)the Borrower may add the applicable Equity Cure Amount in calculating its Consolidated EBITDA (or Annualized Consolidated EBITDA, in the case of the Rolling Periods ending on or prior to March31, 2015, and, if the Borrower elects application of the Q4 2014 Base Periods in accordance with Section 9.01(f), the Rolling Period ending on June30, 2015) for such Rolling Period for purposes of determining compliance with clauses (a), (b), (c) and (d)of this Section9.01. For the avoidance of doubt, (x)no Equity Cure Amount shall be retroactively netted or credited against Consolidated Total Funded Indebtedness in the calculation of the Consolidated Total Leverage Ratio or the Consolidated Senior Secured Leverage Ratio, as applicable, for the purpose of determining the Borrowers compliance with clauses (a)and (b) of this Section9.01 for the Rolling Period ending on the Equity Cure Test"
"(j)Indebtedness (i)arising from the honoring by a bank or other financial institution of a check, draft, payment order or other debit drawn, presented or issued against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence or (ii)arising under any Bank Products provided by a bank or other financial institution to the Loan Parties in the ordinary course of business;"
"(f)Liens on cash earnest money or escrowed deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section9.05, to be applied against the purchase price for and indemnities with respect to such Investment, solely to the extent such Investment would have been permitted on the date of the creation of such Lien;"
"(a)the Borrower or any Subsidiary may participate in a consolidation with any other Person; provided that (i)no Default is continuing, (ii)any such consolidation would not cause a Default hereunder, (iii)if the Borrower consolidates with any Person, the Borrower shall be the surviving Person, and (iv)if any Subsidiary consolidates with any Person (other than the Borrower or another Subsidiary) and such Subsidiary is not the surviving Person, such surviving Person shall expressly assume in writing (in form and substance satisfactory to the Administrative Agent) all obligations of such Subsidiary under the Loan Documents;"
"(c)Any representation or warranty made or deemed made by or on behalf of any Loan Party, any Subsidiary of the Borrower, Holdings or any Sponsor in or in connection with any Loan Document or any amendment or modification of any Loan Document or waiver under such Loan Document, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made."
"Section11.01Appointment and Authority. Each of the Lenders and each Issuing Bank hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article XI are solely for the benefit of the Administrative Agent, the Lenders and each Issuing Bank, and neither the Borrower nor any Subsidiary shall have any rights as a third party beneficiary of any such provisions."
"Section11.07Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Agents shall not be required to keep themselves informed as to the performance or observance by the Borrower or any of its Subsidiaries of this Agreement, the Loan Documents, or any other document referred to or provided for herein or to inspect the Properties or books of the Loan Parties or the Subsidiaries. Except for notices, reports, and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with an credit or other information concerning the affairs, financial condition, or business of the Loan Parties (or any of their Affiliates) which may come into possession of such Agent or any of its Affiliates. In this regard, each Lender acknowledges that Vinson& Elkins L.L.P. is acting in this transaction as special counsel to the Administrative Agent only, except that to the extent otherwise expressly stated in any legal opinion or any Loan Document. Each other party hereto will consult with its own legal counsel to the extent that it deems necessary in connection with the Loan Documents and the matters contemplated therein."
"(c)Change of Address, Etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt."
"(a)Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues a Letter of Credit), except that (i)the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and (ii)no Lender may assign or otherwise transfer its rights or obligations hereunder except (A)to an assignee in accordance with the provisions of Section 12.04(b), (B) by way of participation in accordance with the provisions of Section 12.04(d), or (C)by way of pledge or assignment of a security interest subject to the restrictions of Section 12.04(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate"
Counterparty to another Person that is not a Lender or an Affiliate of a Lender) and Bank Products Providers with respect to any obligations in respect of Bank Products. No Lender or any Affiliate of a Lender shall have any voting or consent rights under any Loan Document as a result of the existence of obligations owed to it under any such Secured Hedging Agreements or in respect of Bank Products.
"Section12.20Intercreditor Agreement. Reference is made to the Intercreditor Agreement among the Borrower, the Guarantors, the Term Administrative Agent, as Term Facility Administrative Agent (as defined therein), and the Administrative Agent, as Revolving Facility Administrative Agent (as defined therein). Each Lender hereunder (a)acknowledges that it has received a copy of the Intercreditor Agreement, (b)consents to the priority of Liens provided for in the Intercreditor Agreement, (c)agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement as if it was a signatory thereto and (d)authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement as Administrative Agent and on behalf of such Lender. The foregoing provisions are intended as an inducement to the Term Facility Lenders (as defined in the Intercreditor Agreement) to permit the incurrence of Indebtedness under this Agreement and to extend credit to the Borrower and such lenders are intended third party beneficiaries of such provisions."
"| | | | | | ---|---|---|---|---|---|--- |  | SOUTHCROSS CCNG GATHERING LTD. |  | SOUTHCROSS CCNG TRANSMISSION LTD. |  | SOUTHCROSS GULF COAST TRANSMISSION LTD. |  | SOUTHCROSS MISSISSIPPI PIPELINE, L.P. |  | SOUTHCROSS MISSISSIPPI GATHERING, L.P. |  | SOUTHCROSS ALABAMA GATHERING SYSTEM, L.P. |  | SOUTHCROSS MIDSTREAM SERVICES, L.P. |  | SOUTHCROSS MARKETING COMPANY LTD. |  | SOUTHCROSS NGL PIPELINE LTD. |  | SOUTHCROSS GATHERING LTD. |  | SOUTHCROSS MISSISSIPPI INDUSTRIAL GAS SALES, L.P. | | |  | By: |  | Southcross Energy GP LLC, |  | |  | as general partner | | |  | By: |  |"
"This AMENDMENT NO. 7 TO CREDIT AGREEMENT (""Amendment"") is dated as of March 22, 2017, and is entered into by and among PERFORMANT BUSINESS SERVICES, INC. (formerly known as DCS Business Services, Inc.), a Nevada corporation (""Borrower""), the Lenders (as defined in the Credit Agreement as hereafter defined) party hereto, and MADISON CAPITAL FUNDING LLC, as Agent for all Lenders."
"Applicable Rate means, as of any date of determination, a per annum rate equal to (a)for the period commencing on the Closing Date through the last day of the first full fiscal quarter ending after the Closing Date, (i)for Eurocurrency Rate Loans, 3.50% and (ii)for Base Rate Loans, 2.50% and (b)thereafter, the rate set forth below under the applicable Type of Loan and opposite the applicable Availability, based on the average daily Availability during the fiscal quarter most recently ended immediately preceding such date, as a percentage of the Maximum Revolving Credit:"
"|  | Less than 33% |  | 2.50% |  | 1.50% Changes in the Applicable Rate resulting from a change in Availability shall become effective as to all Loans, Swingline Loans, L/C Obligations and Protective Advances upon delivery by the Borrowers to the Administrative Agent of a new Borrowing Base Certificate pursuant to Section 6.02(i) in respect of the calendar month ending on the last day of such fiscal quarter. Notwithstanding anything to the contrary set forth in this Agreement (including the then effective Availability), if the Borrowers shall fail to deliver such Borrowing Base Certificate within any of the time periods specified in Section 6.02(i), the Applicable Rate from and including the 20th day after the end of the applicable month or, during a Liquidity Period, the 3rd Business Day after the end of the applicable week, as the case may be, to but not including the date the Borrowers deliver to the Administrative Agent such Borrowing Base Certificate shall equal the highest possible Applicable Rate provided for by this definition."
"(g)the representations and warranties of each Loan Party and its Subsidiaries contained in this Amendment and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) as of such earlier date;"
"THIS CREDIT AGREEMENT (this Agreement) is dated as of February24, 2017 and is made by and among HAWAIIAN TELCOM COMMUNICATIONS,INC., a Delaware corporation, as the BORROWER (defined below), each of the GUARANTORS (defined below) who become a party hereto on the Closing Date or from time to time thereafter, the LENDERS (defined below), COBANK, ACB, in its capacity as Administrative Agent for the Secured Parties, a Joint Lead Arranger, Bookrunner, an Issuing Lender and Swing Line Lender (each defined below), FIFTH THIRD BANK, as a Joint Lead Arranger and Co-Syndication Agent, and MUFG UNION BANK, N.A., as a Joint Lead Arranger and Co-Syndication Agent."
"Closing Date means the date of the consummation of the conditions precedent to the Initial Credit Extension; provided that, the Closing Date shall not occur (a)on or before May3, 2017 or (b)after May31, 2017; provided further, that the Borrower may elect to delete clause (a)of the forgoing proviso upon written notice to the Administrative Agent and compliance with the last sentence of Section11.1."
"Commitment means, as to any Lender, the aggregate of its Revolving Commitment, Swing Line Commitment, Letter of Credit Commitment, Term Loan A-1 Commitment, Term Loan A-2 Commitment and Incremental Term Loan Commitment for each Tranche, as applicable, and Commitments means the aggregate of the Revolving Commitments, Swing Line Commitment, Letter of Credit Commitments, Term Loan A-1 Commitments, Term Loan A-2 Commitments and Incremental Term Loan Commitments of all of the Lenders."
"minus (b)without duplication and to the extent included in determining such Consolidated Net Income, the sum of any non-cash gains or other non-cash items of income for such period (provided that any cash received in a subsequent period in respect of any such non-cash gain shall be included in Consolidated EBITDA for the period in which received), all determined on a consolidated basis in accordance with GAAP; provided that, for purposes of calculating the Leverage Ratio (for any period) and the Debt Service Coverage Ratio (for the first three"
"quarters ended after the Closing Date), (A)the Consolidated EBITDA of any Subsidiary acquired by the Borrower or its Subsidiary pursuant to a permitted Material Acquisition during such period shall be included on a pro forma basis for such period (assuming the consummation of such acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred as of the first day of such period) and (B)the Consolidated EBITDA attributable to any Material Disposition by the Borrower or any Subsidiary during such period for shall be excluded for such period (assuming the consummation of such sale or other disposition and the repayment of any Indebtedness in connection therewith occurred as of the first day of such period). It is agreed that the calculations of pension impact on Consolidated EBITDA shall be made on a GAAP (not cash) basis."
"EEA Financial Institution means (a)any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b)any entity established in an EEA Member Country which is a parent of an institution described in clause (a)of this definition, or (c)any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a)or (b)of this definition and is subject to consolidated supervision with its parent."
"Excluded Swap Obligation means, with respect to any Loan Party providing a Guaranty of or granting a security interest to secure any Swap Obligation of another Loan Party, if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Partys failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act (determined after giving effect to Section11.16 and any other keepwell, support or other agreements for the benefit of such Guarantor) at the time the Guaranty of, or the grant of such security interest by, such Loan Party becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or grant of security interest is or becomes illegal."
"Guaranty or Guarantee means, with respect to any Person, without duplication, any obligation, contingent or otherwise, of such Person pursuant to which such Person has directly or indirectly guaranteed or had the economic effect of guaranteeing any Indebtedness or other obligation or liability of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of any such Person (a)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or liability (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition or otherwise), (b)to purchase or lease property or services for the purpose of assuring another Persons payment or performance of any Indebtedness or other obligations or liabilities, (c)to maintain the working capital of such Person to permit such Person to pay such Indebtedness or other obligations or liabilities or (d)entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other obligation or liability of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that the term Guaranty/Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. Unless otherwise specified, the amount of any Guaranty shall be deemed to be the lesser of the principal amount of the Indebtedness or other obligations or liabilities guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guaranty."
"Letter of Credit Obligations means, as of any date of determination, (a)the aggregate amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of Credit shall increase in amount automatically in the future, such aggregate amount available to be drawn shall currently give effect to any such future increase) plus (b)the aggregate Reimbursement Obligations and Letter of Credit Borrowings on such date."
"Loan Documents means this Agreement, the Fee Letter, the Collateral Documents, the Solvency Certificate, the Perfection and Diligence Certificate, the Landlord Agreements (if any), Negative Pledge Agreements (if any), the Notices of Incremental Term Loan Borrowing (if any), the Incremental Term Loan Funding Agreements (if any), the Notes and any other instruments, certificates or documents delivered in connection herewith or therewith, all as amended, restated, reaffirmed, reconfirmed, replaced, substituted or otherwise modified from time to time."
"Material Acquisition means any acquisition of property or series of related acquisitions of property that (a)constitutes assets comprising all or substantially all of an operating line of business, division or business unit or constitutes all or substantially all of the Equity Interests of a Person and (b)involves the payment of consideration by the Loan Parties and their Subsidiaries in the aggregate in excess of $5,000,000."
"Maximum Joint Pole Dispute Amount means, (a)for purposes of calculating the Maximum Joint Pole Dispute Amount of Joint Pole Dispute Capital Expenditures that may be excluded from the calculation of Capital Expenditures, $20.1 million in the aggregate as stated by the Hawaiian Electric Companies in a footnote to the 10-Q of the Hawaiian Electric Companies filed with the SEC for the quarterly period ended September30, 2016, and (b)for purposes of other calculations of the Maximum Joint Pole Dispute Amount herein, the Maximum Joint Pole Dispute Amount shall be the result of $7,000,000 multiplied by the number of years in controversy."
"Permitted Additional Investment means an Investment (a)by any Loan Party (other than the Parent) of all of the Equity Interests of any Person, (b)by any Loan Party (other than the Parent or the Borrower) of all or substantially all the assets of, or any line of business or division or business unit of, any other Person or (c)by any Loan Party (other than the Parent) in any Minority Investment; provided that,"
"(ii) an ALTA title insurance policy or policies insuring the Administrative Agent, for the benefit of the Secured Parties (including such endorsements as the Administrative Agent may reasonably require), insuring the Mortgage as a valid first priority Lien upon such Material Owned Real Property or the leasehold interest of any Loan Party with respect to such Material Leased Property, free and clear of all Liens except such Permitted Liens or exceptions as are reasonably acceptable to the Administrative Agent;"
"Secured Hedge means an Interest Rate Hedge permitted under this Agreement (a)that is entered into by a Hedge Bank at the time that such Hedge Bank or its Affiliate is a Lender hereunder and (b)with respect to which such Hedge Bank has provided evidence reasonably satisfactory to the Administrative Agent that (i)such Interest Rate Hedge is documented in a standard International Swaps and Derivatives Association,Inc. Master Agreement and (ii)such Interest Rate Hedge provides for the method of calculating the termination value thereof due to the provider thereof (if any) to be done in a reasonable and customary manner; provided that the foregoing shall not constitute a Secured Hedge if at any time the applicable provider of such Interest Rate Hedge is not a Lender or an Affiliate of a Lender."
"Synthetic Lease means, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a)that is accounted for as an operating lease under GAAP and (b)in respect of which the lessee retains or obtains ownership of the property so leased for United States federal income tax purposes, other than any such lease under which such Person is the lessor."
"(b) Term Loan A-2 Commitments. Subject to the terms and conditions hereof, and relying upon the representations and warranties of the Loan Parties set forth herein and in the other Loan Documents, each Term Loan A-2 Lender severally agrees to make a term loan (the Term Loan A-2) to the Borrower on the Closing Date (by the time and in the manner specified in Section2.6(a)) in such principal amount as the Borrower shall request up to, but not exceeding the lesser of (i)such Term Loan A-2 Lenders Term Loan A-2 Commitment and (ii)such Term Loan A-2 Lenders Pro Rata Share of the aggregate principal amount of the Term Loan A-2s to be funded on the Closing Date."
"acceptable to the Administrative Agent within the period of time provided therein shall be deemed to have elected not to participate in such Tranche of Incremental Term Loans. No Lender or new lender shall have any obligation to fund any Incremental Term Loan, and any decision by a Lender or new lender to fund any Incremental Term Loan shall be made in its sole discretion independently from any other Lender or new lender."
"(b) Commencement of Interest Period. In the case of any borrowing of, conversion to or continuation of any LIBOR Rate Loan, the Interest Period shall commence on the date of advance or continuation of, or conversion to, any LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires. Upon a conversion from a LIBOR Rate Loan to a Base Rate Loan, interest at the Base Rate Option shall commence on the last day of the existing Interest Period."
"(g) Nature of Participation and Reimbursement Obligations. Each Revolving Lenders obligation in accordance with this Agreement to make the Revolving Loans or Participation Advances, as contemplated by this Section2.9, as a result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the applicable Issuing Lender upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section2.9 under all circumstances, including the following circumstances:"
"(c) Casualty Events. Promptly upon the receipt by any Loan Party or Subsidiary thereof of Net Cash Proceeds of any Casualty Event or series of related Casualty Events affecting any property of any Loan Party or any Subsidiary of any Loan Party, the Borrower shall prepay, or cause such other Loan Party or Subsidiary thereof to prepay, Obligations in an aggregate amount equal to 100% of such Net Cash Proceeds of such Casualty Event(s). All such proceeds shall be paid and applied in accordance with Sections2.13(f)and (g). Notwithstanding anything herein to the contrary, no such mandatory prepayment shall constitute or be deemed to constitute a cure of any Default or Event of Default arising as a result of such Casualty Event(s)giving rise to such prepayment obligation."
"(g) Interest Payments; Application Among Interest Rate Options. All prepayments pursuant to this Section2.13 shall be accompanied by accrued and unpaid interest upon the principal amount of each such prepayment (unless other arrangements with respect to the payment of such interest and fees satisfactory to the applicable Lenders in their sole discretion have been made). Subject to Section2.13(f), all prepayments required pursuant to this Section2.13 shall first be applied to Base Rate Loans, then to LIBOR Rate Loans. In accordance with Section3.5, the Borrower shall indemnify the Lenders for any loss or expense, including loss of margin, incurred with respect to any such prepayments applied against LIBOR Rate Loans on any day other than the last day of the applicable Interest Period."
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section2.16.
"(C) With respect to Revolving Unused Commitment Fee, Term Loan A-1 Unused Commitment Fee, Term Loan A-2 Unused Commitment Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A)or (B)above, the Borrower shall (1)pay to each Voluntarily Increasing Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenders Pro Rata Share of the Initial Credit Extension that has been reallocated to such Voluntarily Increasing Lender pursuant to clause (iv)(A)below, (2)pay to each Non-Defaulting Lender that portion of any such Revolving Unused Commitment Fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenders participation in Letter of Credit Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv)(B)below, (3)pay to each Issuing Lender and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each Issuing Lenders or Swing Line Lenders Fronting Exposure to such Defaulting Lender and (4)not be required to pay the remaining amount of any such fee."
"(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x)with respect to payments of interest under any Loan Document, executed originals of IRS FormW-8BEN or IRS FormW-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the interest article of such tax treaty and (y)with respect to any other applicable payments under any Loan Document,IRS FormW-8BEN or IRS FormW-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the business profits or other income article of such tax treaty;"
"(b) Default Rate. To the extent permitted by Law, immediately upon the occurrence and during the continuation of an Event of Default under clause(a)or (1)of Section9.1, or immediately after written demand by the Required Lenders to the Administrative Agent after the occurrence and during the continuation of any other Event of Default (such demand to be made by the Required Lenders in their sole discretion), the principal amount of all Obligations shall bear interest at the Default Rate and the rates applicable to Letter of Credit Fees shall be increased to the Default Rate. The Borrower acknowledges that the increase in rates referred to in this Section3.4(b)reflects, among other things, the fact that such Loans or other amounts have become a substantially greater risk given their default status and that the Lenders are entitled to additional compensation for such risk; and all such interest shall be payable by the Borrower upon demand by the Administrative Agent."
"(iv) other than as provided on Schedule 5.8, evidence that all governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;"
"(vii) the audited, consolidated financial statements of the Parent and its Subsidiaries for the fiscal year ending December31, 2015, and such other financial statements, budgets, forecasts and other financial information as to the Parent and its Subsidiaries as the Administrative Agent or any other Lender may have required prior to the Execution Date;"
5.4 Investment Company Act. None of the Loan Parties or Subsidiaries of any Loan Party is an investment company registered or required to be registered under the Investment Company Act of 1940 or under the control of an investment company as such terms are defined in the Investment Company Act of 1940 and shall not become such an investment company or under such control.
"5.12 Full Disclosure. Neither this Agreement nor any other Loan Document, nor any certificate, written statement, agreement or other documents furnished to the Administrative Agent or any Lender in connection herewith or therewith (other than projections and budgets), contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein, in light of the circumstances under which they were made, not misleading. Any projections or budgets provided by or on behalf of the Loan Parties or their respective Subsidiaries have been prepared by management in good faith and based on assumptions believed by management to be reasonable at the time the projections or budgets were prepared, it being understood that the projections or budgets as to future events are not to be viewed as fact and that actual results during the period or periods covered by the projections or budgets may differ materially from such projected results. There is no fact known to any Authorized Officer of any Loan Party or any Subsidiary of any Loan Party that materially and adversely affects the business, property, assets, financial condition or results of operations of the Loan Parties and their Subsidiaries, taken as a whole, that has not been set forth in this Agreement or in the certificates, statements, agreements or other documents furnished in writing to the Administrative Agent and the Lenders prior to or on the Execution Date in connection with the transactions contemplated hereby."
"(a) The facilities and properties currently or formerly owned, leased or operated by any Loan Party or any Subsidiary of any Loan Party (the Properties) do not (i)contain any Hazardous Materials attributable to the ownership, lease or operation of the Properties by any Loan Party or any Subsidiary of any Loan Party in amounts or concentrations or (ii)store or utilize any Hazardous Materials in amounts or concentrations which (A)constitute a violation by any Loan Party or any Subsidiary of Environmental Laws, or (B)could reasonably be expected to give rise to any Environmental Liability in the aggregate in excess of the Threshold Amount;"
"(c) All of the material properties, equipment and systems owned, leased, subleased or managed by the Loan Parties or their respective Subsidiaries are, and (to the best knowledge of the Loan Parties and their Subsidiaries) all such property, equipment and systems to be acquired or added in connection with any contemplated system expansion or construction will be, in good repair, working order and condition (reasonable wear and tear and casualty events excepted) and are and will be in compliance with all terms and conditions of the Licenses, all Laws and all standards or rulesimposed by any Governmental Authority or as imposed under any agreements with telecommunications companies and customers."
"(e) The Loan Parties have provided to the Administrative Agent and the Lenders all information requested by the Administrative Agent and the Lenders regarding the Loan Parties and their respective Subsidiaries, Affiliates, officers, directors, employees and agents that the Administrative Agent and the Lenders have requested to comply with applicable Anti-Corruption Laws, Anti-Terrorism Laws, Sanctions and other Laws."
"(ix) Material Adverse Effect. Promptly after becoming aware thereof, the Borrower will give notice of any change in events or changes in facts or circumstances affecting any Loan Party or any of their respective Subsidiaries which individually or in the aggregate have resulted in or would reasonably be expected to result in a Material Adverse Effect."
"(B) revisions or updates to the Schedules referred to in this Agreement or Annexes to the Security Agreement as may be necessary or appropriate to update or correct any of the information or disclosures provided therein that has become outdated or incorrect in any material respect; provided that, no such revised or updated Schedules or Annexes delivered pursuant to this Section6.1 or otherwise (other than, for the avoidance of doubt, pursuant to Section4.2(b)(i)which shall be reasonably acceptable to the Administrative Agent) shall be deemed to have been amended, modified or superseded by any such revision or update, nor shall any breach of warranty or representation resulting from the inaccuracy or incompleteness of any such Schedule or Annex be deemed to have been cured thereby, unless and until the Administrative Agent, in its reasonable discretion, or the Required Lenders, in their sole discretion, shall have accepted in writing such revisions or updates to such Schedule or Annex."
"(a) Each Loan Party shall, and shall cause each of its Subsidiaries to, insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers compensation, public liability and business interruption insurance) and against other risks (including errors and omissions) in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable and financially sound insurers, including self-insurance to the extent customary, all as reasonably determined by the Administrative Agent. From the Initial Credit Extension and thereafter, subject to Section6.15, such insurance policies shall contain (i)additional insured, mortgagee and/or lender loss payable special endorsements, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as additional insured, mortgagee and/or lender loss payee, as applicable, (ii)endorsements providing the Administrative Agent with notice of cancellation acceptable to the Administrative Agent, and (iii)waiver of subrogation endorsements in form and substance reasonably satisfactory to the Administrative Agent."
"(a) Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with all applicable Laws, except where failure to comply with any applicable Law would not result in fines, penalties, remediation costs, other similar liabilities or injunctive relief that, in the aggregate, would reasonably be expected to result in a Material Adverse Effect."
"property or to otherwise comply with Environmental Laws pertaining to any of its real property (provided, however, that neither a Loan Party nor any of its Subsidiaries shall be required to undertake any such investigation, remediation, removal, response or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and adequate reserves have been set aside and are being maintained by the Loan Parties with respect to such circumstances in accordance with GAAP)."
"(b) existing Indebtedness as set forth on Schedule 7.1 (including any extensions or renewals thereof but not to include any existing Indebtedness incurred with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Lease Obligations for fixed or capital assets); provided that (i)the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and (ii)the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;"
"(d) so long as no Default or Event of Default under the Loan Documents shall exist at the time of such declaration or could reasonably be expected to result from such dividend, distribution or redemption (tested solely at the time of declaration of any such dividend, distribution or redemption) and the Loan Parties shall be in compliance with the covenants set forth in ArticleVIII after giving effect to any such dividend, distribution or redemption on a pro forma basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (tested solely at the time of declaration of any such dividend, distribution or redemption),"
"(j) other Dispositions of up to $20,000,000 in the aggregate during the term of the Facilities upon fair and reasonable arms-length terms and conditions; provided that, no such Disposition shall consist of any Equity Interest of any Loan Party unless all of the Equity Interest of such Loan Party owned directly or indirectly by any other Loan Party are subject to such Disposition;"
"7.18 The Parent as a Holding Company. The Parent covenants and agrees that it shall not own or acquire any assets other than the Equity Interests of the Borrower, and shall not conduct, transact or otherwise engage in any business or operations other than those incidental to its ownership of the Equity Interests of its direct and indirect Subsidiaries."
"8.3 Minimum Debt Service Coverage Ratio. The Loan Parties shall maintain at all times, commencing in the first full fiscal quarter of the Borrower following the Closing Date, measured at each fiscal quarter end and maintained through the next measurement date, a Debt Service Coverage Ratio of the Parent and its Subsidiaries on a Consolidated basis of not less than 2.75 to 1.00."
"(g) Loan Document Unenforceable. Any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the party executing the same or such partys successors and assigns (as permitted under the Loan Documents) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or contested by any party thereto (other than by the Administrative Agent or any Lender) or cease to give or provide the respective Liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created thereby;"
"Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, Letter of Credit Borrowings and other Obligations, and fees (including Letter of Credit Fees), ratably among the Lenders and each Issuing Lender in proportion to the respective amounts described in this clause Third payable to them;"
"If and to the extent the Administrative Agent has received notice or other evidence that any amount claimed as a Secured Obligation is or could reasonably be determined to be an Excluded Swap Obligation with respect to any Loan Party, amounts received from such Loan Party or its assets shall not be applied to such Excluded Swap Obligations with respect to such Loan Party, and adjustments shall be made with respect to amounts received from other Loan Parties and their assets as the Administrative Agent may determine, in consultation with or at the direction of, the Lenders to be equitable (which may include, without limitation, the purchase and sale of participation interests) so that, to the maximum extent practical, the benefit of all amounts received from the Loan Parties and their assets are shared in accordance with the allocation of recoveries set forth above that would apply if the applicable Swap Obligations were not Excluded Swap Obligations. Each Loan Party acknowledges and consents to the foregoing."
"(a) The Administrative Agent shall not be liable for any action taken or not taken by it (i)with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections11.1 and 9.2) or (ii)in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower, a Lender or an Issuing Lender."
"(a) to file and prove a claim for the whole amount of the owing and unpaid principal and interest in respect to the Secured Obligations and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Lenders and the Administrative Agent under Sections2.7, 2.10(b), 3.5 and 11.3) allowed in such proceeding;"
"(i) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (A)upon termination of all Commitments and Payment In Full of all Secured Obligations (other than contingent indemnification obligations as to which no claim has been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit and Other Liabilities as to which other arrangements satisfactory to the Administrative Agent and the applicable Lender or Issuing Lender on behalf of itself or its Affiliates shall have been made), (B)that is Disposed of or to be Disposed of as part of or in connection with any sale or other Disposition permitted under the Loan Documents, or (C)subject to Section11.1, if approved, authorized or ratified in writing by the Required Lenders;"
"(b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agents Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral."
"Notwithstanding anything to the contrary herein, technical and conforming modifications to (or amendments and restatements of) the Loan Documents may be made with the consent of the Borrower and the Administrative Agent to the extent necessary (1)to provide for terms and conditions of any Incremental Term Loan, including, without limitation, with respect to borrowing and prepayment conditions and mechanics, (2)so as to modify Section2.13, Section9.2(d), any other provision hereof or thereof relating to the pro rata sharing of payments among the Lenders or any other provisions hereof or"
"11.2 No Implied Waivers; Cumulative Remedies. No course of dealing and no delay or failure of the Administrative Agent, an Issuing Lender or any Lender in exercising any right, power, remedy or privilege under this Agreement or any other Loan Document shall affect any other or future exercise thereof or operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise thereof or of any other right, power, remedy or privilege. The rights and remedies of the Administrative Agent and the Lenders under this Agreement and any other Loan Documents are cumulative and not exclusive of any rights or remedies that they would otherwise have."
"(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a)or (b)of this Sectionto be paid by it to the Administrative Agent (or any sub-agent thereof), any Issuing Lender, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Lender, the Swing Line Lender or such Related Party, as the case may be, such Lenders pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lenders Pro Rata Share at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided, that with respect to such unpaid amounts owed to any Issuing Lender or Swing Line Lender solely in its capacity as such, only the Revolving Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Revolving Lenders Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); and provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swing Line Lender in connection with such capacity."
"11.6 Duration; Survival. All representations and warranties of the Loan Parties contained herein or made in connection herewith shall survive the execution and delivery of this Agreement, the completion of the transactions hereunder and the Termination Date. All covenants and agreements of the Borrower contained herein relating to the payment of principal, interest, premiums, additional compensation or expenses and indemnification, including those set forth in the Notes, ArticleII, ArticleIII, Section11.3 or any other provision of any Loan Document, the agreement of the Lenders set forth in Section11.3(c), and the agreements of the Loan Parties set forth in Section11.10 or any other provision of any Loan Documents shall survive the Termination Date and shall protect the Administrative Agent, the Lenders and any other Indemnitees against events arising after such termination as well as before. All other covenants and agreements of the Loan Parties shall continue in full force and effect from and after the date hereof and until the Termination Date."
"(B) in any case not described in clause (i)(A)of this clause (b), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if Trade Date is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility, the Term Loan A-1 Facility, the Term Loan A-2 Facility or any Tranche of the Incremental Term Loan Facility, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed)."
"to any Participant. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section9.2(c)as though it were a Lender; provided that such Participant agrees to be subject to Section2.14 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loans or other obligations under the Loan Documents (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section5f.103-1(c)of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. CoBank reserves the right to assign or sell participations in all or part of its Commitments or outstanding Loans hereunder on a non-patronage basis."
"keep such Information confidential); (b)to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c)to the extent required by applicable Laws or by any subpoena or similar legal process; (d)to any other party hereto; (e)in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f)subject to an agreement containing provisions substantially the same as those of this Section, to (i)any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii)any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (g)on a confidential basis to (i)any rating agency in connection with rating the Borrower or its Subsidiaries or the Facilities or (ii)the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities; (h)with the consent of the Borrower; or (i)to the extent such Information (A)becomes publicly available other than as a result of a breach of this Section, or (B)becomes available to the Administrative Agent, any Lender, any Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower."
"(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF,IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAYBE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAYBE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING LENDER MAYOTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION."
"(k) Any merger, consolidation, liquidation, dissolution, winding-up, charter revocation, or forfeiture, or other change in, restructuring or termination of the corporate structure or existence of, the Borrower, any other Loan Party or any other Person; any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Borrower, any other Loan Party or any other Person; or any action taken or election made by the Administrative Agent or the other Secured Parties, or any of them (including but not limited to any election under Section1111(b)(2)of the Bankruptcy Code), the Borrower, any other Loan Party or any other Person in connection with any such proceeding;"
"(a) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, to the extent any Guarantors Obligations shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable Law relating to fraudulent conveyances or transfers) then the obligations of each such Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable Law (whether federal or state and including any Debtor Relief Law). Any analysis of the provisions hereof for purposes of Laws relating to fraudulent conveyances or transfers shall take into account the contribution agreement established in Section12.5."
"12.9 Set-Off and Waiver. Each Guarantor waives any right to assert against any Secured Party as a defense, counterclaim, set-off, recoupment or cross claim in respect of its Guarantors Obligations, any defense (legal or equitable) or other claim which such Guarantor may now or at any time hereafter have against the Borrower or any other Loan Party or any or all of the Secured Parties without waiving any additional defenses, set-offs, counterclaims or other claims otherwise available to such Guarantor. Each Guarantor agrees that each Secured Party shall have a lien for all the Guarantors Obligations upon all deposits or deposit accounts, of any kind, or any interest in any deposits or deposit accounts, now or hereafter pledged, mortgaged, transferred or assigned to such Secured Party or otherwise in the possession or control of such Secured Party for any purpose (other than solely for safekeeping) for the account or benefit of such Guarantor, including any balance of any deposit account or of any credit of such Guarantor with the Secured Party, whether now existing or hereafter established, and hereby authorizes each Secured Party from and after the occurrence of an Event of Default at any time or times with or without prior notice to apply such balances or any part thereof to such of the Guarantors Obligations to the Secured Parties then due and in such amounts as provided for in this Agreement or otherwise as they may elect."
"(b) Each Guarantor hereby agrees that payment or performance by such Guarantor of its Guarantors Obligations under this ArticleXII may be enforced by the Administrative Agent on behalf of the Secured Parties upon demand by the Administrative Agent to such Guarantor without the Administrative Agent being required, such Guarantor expressly waiving to the extent not otherwise expressly prohibited by applicable Law any right it may have to require the Administrative Agent, to (i)prosecute collection or seek to enforce or resort to any remedies against the Borrower or any other Guarantor or any other guarantor of the Guaranteed Liabilities, or (ii)seek to enforce or resort to any remedies with respect to any security interests, Liens or encumbrances granted to the Administrative Agent or any Lender or other party to a Related Agreement by the Borrower, any other Guarantor or any other Person on account of the Guaranteed Liabilities or any guaranty thereof,IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED BY SUCH GUARANTOR THAT DEMAND UNDER THE GUARANTY SET FORTH IN THIS ARTICLEXII MAYBE MADE BY THE ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING."
"(a) Each Guarantor hereby acknowledges that it has received a copy of this Agreement and the other Loan Documents and each Guarantor certifies that the representations and warranties made therein with respect to such Guarantor are true and correct in all material respects. Further, each Guarantor acknowledges and agrees to perform, comply with, and be bound by all of the provisions of this Agreement and the other Loan Documents applicable to such Guarantor."
" In August2014, HTSC joined a consortium of national and international companies to build and operate the Southeast Asia to United States (SEA-US) trans Pacific submarine cable system connecting Indonesia, the Philippines, Guam, Hawaii and the mainland United States. Pursuant to the SEA-US Agreements, HTSC has undertaken the following Contingent Obligations:"
"THIS COMPLIANCE CERTIFICATE is given by , the [TITLE OF COMPLIANCE OFFICER] of HAWAIIAN TELCOM COMMUNICATIONS,INC. (the Borrower) pursuant to Section6.1(c)of that certain Credit Agreement, dated as of February24, 2017 (as amended, modified, supplemented, extended or restated from time to time, the Credit Agreement), among the Borrower, the Guarantors party thereto from time to time, the Lenders party thereto from time to time and CoBank, ACB, as the Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement."
"3. As of the date of such financial statements, the Loan Parties are in compliance with the covenants set forth in ArticleVIII of the Credit Agreement, except as set forth under paragraph 4 below. Attached hereto as Annex B are calculations that demonstrate the compliance by the Loan Parties with such covenants;"
"known to any Loan Party (such that an officer of any Loan Party has actual knowledge of the existence of a tort cause of action and not merely of the existence of the facts giving rise to such cause of action) and are known to any Loan Party to involve an amount in controversy in excess of the Threshold Amount in the aggregate, (v)any Material Contracts, and (vi)any Material Account, in each case, owned, acquired, leased or opened by any Loan Party, in each case, of which notice has not previously been given to the Administrative Agent[, as well as revised or updated Schedules to the Credit Agreement or Annexes to the Security Agreement to the extent required by Section6.1(e)(xi)(B)of the Credit Agreement].](13)"
"If the LIBOR Rate Option is selected, the Initial Interest Period shall be a month period [select one, two, three, six months, or, to the extent made available by all the Lenders, twelve months][; provided, that, the Initial Interest Period following the Closing Date shall be for a period commencing [](19) and ending on [](20)."
"FOR VALUE RECEIVED, the undersigned, HAWAIIAN TELCOM COMMUNICATIONS,INC., a Delaware corporation (herein called the Borrower), hereby unconditionally promises to pay [] (the Lender), or its registered assigns, at the office of the Administrative Agent (as defined below) at 6340 S. Fiddlers Green Circle, Greenwood Village, Colorado 80111, the lesser of (i)the principal sum of [] AND [NO]/100 DOLLARS (US$[]), or (ii)the unpaid principal balance of the Term Loan A-1 made by the Lender to the Borrower pursuant to Section2.1 of that certain Credit Agreement, dated as of February24, 2017 (as amended, modified, supplemented, extended or restated from time to time, the Credit Agreement), among the Borrower, the Guarantors now or hereafter party thereto, the Lenders now or hereafter party thereto and CoBank, ACB, as administrative agent (hereinafter referred to in such capacity as the Administrative Agent), together with all outstanding interest thereon on the Maturity Date."
"This Term Loan A-2 Note shall bind the Borrower and its successors and assigns, and the benefits hereof shall inure to the benefit of the Lender and its successors and assigns. All references herein to the Borrower and the Lender shall be deemed to apply to the Borrower and the Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement."
"This Term Loan A-2 Note and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Term Loan A-2 Note or the other Loan Documents and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the Law of the State of New York without regard to conflicts of law principles that require or permit application of the Laws of any other state or jurisdiction."
"This Solvency Certificate (this Certificate) is delivered to CoBank, ACB (CoBank), as administrative agent (in such capacity, the Administrative Agent) for the Secured Parties (as defined in the Credit Agreement described below), pursuant to Section4.2 of the Credit Agreement, dated as of February24, 2017 (as amended, modified, supplemented, extended or restated from time to time, the Credit Agreement), among Hawaiian Telcom Communications,Inc. (the Borrower), the Guarantors party thereto from time to time, the Administrative Agent and the financial institutions party thereto as lenders (collectively, Lenders) from time to time. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. Rulesof construction set forth set forth in Sections 1.2 through 1.9 of the Credit Agreement shall apply to this Certificate."
"4. Based upon the foregoing, each of the undersigned has concluded, in good faith and to the best of [his or her] knowledge and belief, that as of the date hereof and after giving effect to all the transactions contemplated by the Credit Agreement and the other Loan Documents, as follows:"
"Pursuant to the provisions of Section3.2(g)of the Credit Agreement, the undersigned hereby certifies that (i)it is the sole record and beneficial owner of the Loan(s)(as well as any Note(s)evidencing such Loan(s)) in respect of which it is providing this certificate, (ii)it is not a bank within the meaning of Section881(c)(3)(A)of the Code, (iii)it is not a 10 percent shareholder of the Borrower within the meaning of Section871(h)(3)(B)of the Code and (iv)it is not a controlled foreign corporation related to the Borrower as described in Section881(c)(3)(C)of the Code."
"Reference is hereby made to the Credit Agreement dated as of February24, 2017 (as amended, modified, supplemented, extended or restated from time to time, the Credit Agreement), among HAWAIIAN TELCOM COMMUNICATIONS,INC. (the Borrower), the Guarantors party thereto from time to time, the Lenders party thereto from time to time and CoBank, ACB, as the Administrative Agent."
"7. The Borrower shall pay to the Administrative Agent, on behalf of the Lenders funding the Incremental Term Loans comprising such Tranche on a pro rata basis, [upfront/closing] fees in an amount equal to []% of the amount of the Incremental Term Loans comprising such Tranche on the advance date referred to in Paragraph 2 above."
"(b) as demonstrated on Annex 1 attached hereto, after giving effect to the Proposed Borrowing and the application of the proceeds therefrom, the Borrower is in compliance with the covenants set forth in ArticleVIII of the Credit Agreement on a Pro forma Basis as of the most recent four fiscal quarter period for which Consolidated financial statements have been delivered; and"
"WHEREAS, pursuant to Section2.1(g)of the Credit Agreement, the Borrower has requested that the Incremental Term Lenders provide a Tranche of Incremental Term Loans under the Credit Agreement (such Tranche of Incremental Term Loans to be provided in accordance with this Agreement is hereinafter referred to as the Tranche No.[] Incremental Term Loan); and"
"d. the representations and warranties of each Loan Party set forth in ArticleV of the Credit Agreement are true and correct in all material respects and will be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality or a Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) on the date of the Proposed Borrowing, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, other than any such representations or warranties that specifically refer to a date other than the date of the Proposed Borrowing;"
"It is a condition to the extension of credit to the Borrower under the Credit Agreement that the Grantors shall have agreed, by executing and delivering this Agreement, to secure the full and prompt payment and performance of the Secured Obligations. The Lenders are relying on this Agreement in their decision to extend credit to the Borrower under the Credit Agreement, and would not enter into the Credit Agreement without the execution and delivery of this Agreement by the Grantors."
"3.2 Security Interests; Filings. This Agreement, together with (A)the filing of duly completed Uniform Commercial Code financing statements (i)naming each Grantor as debtor, (ii)naming the Administrative Agent as secured party, and (iii)indicating the Collateral, in the jurisdictions set forth with respect to such Grantor in AnnexB hereto, (B) the filing of duly completed and executed grants of security interest in the forms set forth as ExhibitsB and C with the U.S. Copyright Office or the U.S. Patent and Trademark Office, with regard to federally registered Copyright Collateral, Patent Collateral, and Trademark Collateral of each Grantor, as the case may be, (C)the execution by the issuer, securities intermediary or commodity intermediary of a control agreement satisfying the requirements of Sections9-106 and 8-106 (or its successor provision) of the Uniform Commercial Code with regard to Investment Property, (D)the notation of the Administrative Agents Lien on the applicable certificates of title or ownership with regard to Mobile Goods covered by a certificate of title or ownership and (E)the delivery to the Administrative Agent of all stock or other certificates evidencing Equity Interests and Instruments included in the Collateral, together with undated stock powers or other instruments of assignment, as applicable, duly executed in blank (and assuming continued possession thereof by the Administrative Agent and that the Administrative Agent has acquired its security interest and taken possession of such stock or other certificates evidencing Equity Interests and Instruments without notice of any adverse claim), creates and at all times shall (i)constitute a valid and perfected security interest in and Lien upon the Collateral in favor of the Administrative Agent, for the benefit of itself and the other Secured Parties, to the extent a security interest therein can be perfected by such filings, possession or control, as applicable, superior and prior to the rights of all other Persons therein (except for Permitted Liens that by operation of Law or contract would have first priority), and no other or additional filings, registrations, recordings or actions are or shall be necessary or appropriate in order to maintain the perfection and priority of such Lien and security interest, other than actions required with respect to Collateral of the types excluded from Article9 of the Uniform Commercial Code or from the filing requirements under such Article9 by reason of Section9-109 or 9-311 of the Uniform Commercial Code and other than continuation statements required under the Uniform Commercial Code."
"3.3 Locations. AnnexC lists, as to each Grantor and each of its Subsidiaries, as of the date hereof or as of the date of the most recent Compliance Certificate, (A)its exact legal name, (B)the jurisdiction of its incorporation or organization and its organizational identification number (if any), (C)its federal tax identification number, (D)its mailing address and (E)the address of its chief executive office. No Grantor nor any Subsidiary of any Grantor, as of the date hereof or as of the date of the most recent Compliance Certificate, conducts business under any prior or other corporate or company name or under any trade or fictitious names, except as indicated beneath its name on AnnexC, and no Grantor nor any Subsidiary of any Grantor has entered into any contract or granted any Lien within the past five years from the date hereof under any name other than its legal corporate name or a trade or fictitious name indicated on AnnexC."
"interest in favor of the Administrative Agent provided for herein or in any other Collateral Document to which it is a party, except for (A)the filings described in Section3.2, (B)in the case of Accounts owing from any federal governmental agency or authority, the filing by the Administrative Agent of a notice of assignment in accordance with the Federal Assignment of Claims Act of 1940, (C)in the case of Equity Interests, such filings and approvals as may be required in connection with a disposition of any such Collateral by Law affecting the offering and sale of securities generally, and (D)any assignment or transfer of control of any License required in connection with the exercise of the remedies set forth in ArticleVI."
"3.7 Specified Contracts. Except in each case as would not reasonably be expected to result in a Material Adverse Effect, as to (A)each Investment Agreement and (B)each Material Contract to which any Grantor is a party (the foregoing, collectively, Specified Contracts), (i)such Grantor is not in default under such Specified Contract, and to the knowledge of such Grantor, none of the other parties to such Specified Contract is in default thereunder (except as shall have been disclosed pursuant to Section6.1(e)(v)of the Credit Agreement), (ii)such Specified Contract is, or at the time of execution will be, the legal, valid and binding obligation of the Grantors party thereto, enforceable against such Grantor in accordance with the respective terms thereof, subject to applicable Debtor Relief Laws, and no defense, offset, deduction or counterclaim will exist thereunder in favor of any such party, and (iii)the performance by such Grantor of its obligations under such Specified Contract in accordance with its terms will not contravene any requirement of Law, the Loan Documents or any other contractual restriction binding on or affecting such Grantor or any of its properties, and will not result in or require the creation of any Lien upon or with respect to any of its properties (except for Permitted Liens). Each Grantor, promptly upon the request of the Administrative Agent, will furnish the Administrative Agent with a correct and complete copy of each Specified Contract to which it is a party as then in effect."
"(A) Each Grantor has registered, or is taking all commercially reasonable steps to register, all such Grantors Material Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, and Trademark Licenses with the U.S. Copyright Office, the U.S. Patent and Trademark Office or any applicable office or agency in any other country or political subdivision. AnnexesD, E, and F correctly set forth all such Material Copyrights, Copyright Licenses (other than non-exclusive licenses for commercially available software), Patents, Patent Licenses (other than non-exclusive licenses for commercially available software), Trademarks, and Trademark Licenses (including, in each case, all applications for registrations thereof) as of the date hereof or as of the date of the most recent Compliance Certificate that are used or proposed to be used in any Grantors business. Except to the extent such failure could not reasonably be expected to result in a Material Adverse Effect, (i)each Grantor owns all of such Grantors Material Copyrights, Patents, and Trademarks and possess the valid right to use all of the licensed copyrights, patents and trademarks subject to and in accordance with the Copyright Licenses, Patent Licenses and Trademark Licenses; (ii)all registrations of such Copyrights, Patents, or Trademarks have been validly issued under Law and are in full force and effect; (iii)all applicable maintenance fees, affidavits and other filings or payments are current; (iv)to the knowledge of such Grantor, no claim has been made in writing that any of such Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, or Trademark Licenses are invalid or unenforceable; and (v)to the knowledge of such Grantor, no other Person is presently infringing upon the rights of such Grantor with regard to any of such Copyrights, Patents, or Trademarks, or infringing the underlying intellectual property of the Copyright Licenses, Patent Licenses or Trademark Licenses. For the avoidance of doubt, each reference in this Agreement to a Grantors Material Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, and Trademark Licenses (and similar constructions) refers to such Grantors Material Copyrights, Material Copyright Licenses, Material Patents, Material Patent Licenses, Material Trademarks, and Material Trademark Licenses, as applicable."
"3.11 Deposit Accounts and Securities Accounts. All Deposit Accounts and Securities Accounts owned by any Grantor as of the date hereof or as of the date of the most recent Compliance Certificate are set forth in AnnexH, including, with respect to each such account: (A)the name and address of the bank, depository institution, or Securities Intermediary, (B)the account name and number, (C)the type of account, (D)a description of the assets in such account, if applicable, and (E)whether such account is or will be subject to the terms of a control agreement pursuant to the Credit Agreement or any other Loan Document, and (F)whether such account is a Material Account."
"(ii) Unless disclosed under Section4.10(A)(i), in the event that after the date hereof any Grantor shall acquire any Material registered Domain Name or Material Domain Name License or effect any registration of any Material Domain Name, or file any application for registration thereof with any domain name registry or registrar, such Grantor shall furnish written notice thereof to the Administrative Agent as required by Section6.1 of the Credit Agreement, and upon request of the Administrative Agent, such Grantor shall additionally, at its own expense, execute and deliver any agreements, instruments and documents that the Administrative Agent may reasonably request from time to time to further effect and/or confirm the assignment and grant of security interest created by this Agreement in such Domain Name or Domain Name License. Each Grantor hereby appoints the Administrative Agent its attorney-in-fact to execute, deliver and record any and all such agreements, instruments and documents for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed and such power, being coupled with an interest, shall be irrevocable for so long as this Agreement shall be in effect with respect to such Grantor."
"(C) Each Grantor (either itself or through its licensees or sublicensees) will refrain from committing any act, or omitting any act, whereby any Material Patent used in the conduct of such Grantors business would reasonably be expected to become invalidated or dedicated to the public, and shall continue to mark any products covered by any such Patent with the relevant patent number as required by Law."
"(B) To take possession of, receive, endorse, assign and deliver, in its own name or in the name of any Grantor, all checks, notes, drafts and other instruments relating to any Collateral, including receiving, opening and properly disposing of all mail addressed to any Grantor concerning Accounts and other Collateral and to notify the appropriate postal authority to change the mailing or delivery address of such mail; to verify with account debtors or other contract parties the validity, amount or any other matter relating to any Accounts or other Collateral, in its own name or in the name of any Grantor; to accelerate any indebtedness or other obligation constituting Collateral that may be accelerated in accordance with its terms; to take or bring all actions and suits deemed reasonably necessary or appropriate to effect collections and to enforce payment of any Accounts or other Collateral; to settle, compromise or release in whole or in part any amounts owing on Accounts or other Collateral; and to extend the time of payment of any and all Accounts or other amounts owing under any Collateral and to make allowances and adjustments with respect thereto, all in the same manner and to the same extent as any Grantor might have done;"
"(A) If, at any time after the occurrence and during the continuance of an Event of Default, any Grantor shall have received from the Administrative Agent a written request or requests that such Grantor cause any registration, qualification or compliance under any federal or state securities Law to be effected with respect to all or any part of the Equity Interests pledged hereunder, such Grantor will, as soon as practicable and at its expense, use commercially reasonable efforts to cause such registration to be effected and be kept effective and will use commercially reasonable efforts to cause such qualification and compliance to be effected and be kept effective as may be so requested and as would permit or facilitate the sale and distribution of such Equity Interests, including, registration under the Securities Act of 1933 (the Securities Act), appropriate qualifications under applicable blue sky or other state securities Law and appropriate compliance with any other applicable requirements of Governmental Authorities; provided, that the Administrative Agent shall furnish to such Grantor such information regarding the Administrative Agent as such Grantor may reasonably request in writing and as shall be required in connection with any such registration, qualification or compliance. Such Grantor will cause the Administrative Agent to be kept advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, will furnish to the Administrative Agent such number of prospectuses, offering circulars or other documents incident thereto as the Administrative Agent from time to time may request, and will indemnify the Administrative Agent and all others participating in the distribution of such Equity Interests against all claims, losses, damages and liabilities caused by any untrue statement (or alleged"
"(B) Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and state securities Law, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Equity Interests pledged hereunder conducted without registration or qualification under the Securities Act and such state securities Law, to limit purchasers to any one or more Persons who will represent and agree, among other things, to acquire such Equity Interests for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sales may be made in such manner and under such circumstances as the Administrative Agent may deem reasonably necessary or advisable, including at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and agrees that the Administrative Agent shall have no obligation to conduct any public sales and no obligation to delay the sale of any Equity Interests pledged hereunder for the period of time necessary to permit its registration for public sale under the Securities Act and state securities Law, and shall not have any responsibility or liability as a result of its election so not to conduct any such public sales or delay the sale of any Equity Interests pledged hereunder, notwithstanding the possibility that a substantially higher price might be realized if the sale were deferred until after such registration. Each Grantor hereby waives any claims against the Administrative Agent or any other Secured Party arising by reason of the fact that the price at which any Equity Interests pledged hereunder may have been sold at any private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Administrative Agent accepts the first offer received and does not offer such Equity Interests to more than one offeree."
"(H) any manner of application of any payments by or amounts received or collected from any Person, by whomsoever paid and howsoever realized, whether in reduction of any Secured Obligations or any other obligations of the Grantors or any other Person directly or indirectly liable for any Secured Obligations, regardless of what Secured Obligations may remain unpaid after any such application; or"
"(A) THE ADMINISTRATIVE AGENT AND EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF,IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAYBE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW,IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAYBE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN"
"WHEREAS, Grantor has entered into a Pledge and Security Agreement (as amended, modified, restated or supplemented from time to time, the Pledge Agreement), dated as of [ ], 2017, in which Grantor has agreed with CoBank, ACB, as the Administrative Agent (the Administrative Agent), with offices at 6340 S. Fiddlers Green Circle, Greenwood Village, Colorado 80111, to execute this grant of security interest;"
"5. After giving effect to the Initial Credit Extension, each of the Closing Date Representations of each of the Loan Parties and the Subsidiaries of the Loan Parties is true and correct in all material respects, except that such representations and warranties that are qualified in this Agreement by reference to materiality or Material Adverse Effect shall be true and correct in all respects, as of the Closing Date (or, if such representation or warranty makes reference to an earlier date, as of such earlier date);"
"(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any U.S. Federal or New York State court sitting in the Borough of Manhattan, New York, New York in any action or proceeding arising out of or relating to any Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Amendment or any other Loan Document shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Amendment or any other Loan Document against Borrower or its properties in the courts of any jurisdiction."
"Section4.4 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER"
accrue interest at the rates set forth in Section2.9 of the Credit Agreement. Nothing in this Amendment limits the rights of the Lenders at any time on or after the occurrence of a Forbearance Termination Event to foreclose on any Collateral that secures the Obligations in accordance with the Loan Documents.
"payment of employee benefits (each a Payroll Account), and the Credit Parties shall not open new deposit accounts unless held with the Agent; and an Authorized Officer of Borrower shall certify to the Lenders weekly during the Forbearance Period that no amounts have been deposited into any such Payroll Accounts of any Credit Party except amounts related solely to payroll and employee benefits and that no new deposit accounts not held with the Agent have been opened."
"Level III Status exists at any date if, as of the last day of the fiscal quarter of the Borrower referred to in the most recent Financials, (i)the Borrower has not qualified for Level I Status or Level II Status and (ii)the Total Cash Flow Leverage Ratio for the four consecutive fiscal quarters ending on that date is less than 2.50 to 1.00."
"Permitted Investors means (a)ESAS, (b)C. John Wilder and any Affiliate of C. John Wilder, (c)any spouse or lineal descendants (whether natural or adopted) of C. John Wilder and any trust solely for the benefit of C. John Wilder and/or his spouse and/or lineal descendants, (d)Fairfax Financial Holdings Limited and its Affiliates, (e)Gen IV Investment Opportunities, LLC and its Affiliate Vega Asset Partners, LP, (f)OCM EXCO Holdings LLC and (g)any group (as such term is used in clause (a)of the definition of Change of Control) with respect to which Persons described in clauses (a), (b), (c), (d), (e)and (f)of this definition own the majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Borrower that is owned by such group."
"(d) any 1.5 Lien Notes, in whole or in part, from time to time; provided that, (i)such Permitted Refinancing is permitted pursuant to the Intercreditor Agreement (including Section4.04 thereof), (ii)the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such Permitted Refinancing (plus unpaid accrued interest and premium thereon and underwriting discounts, defeasance costs, fees, commissions, expenses and, Indebtedness consisting of additional 1.5 Lien Notes issued for accrued interest thereon paid-in-kind), (iii)the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to a date that is at least one hundred eighty (180)days after the Revolving Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default), (iv)the covenants, events of default, guarantees, collateral and other terms of which (other than interest rate and redemption premiums) taken as a whole, are not materially more restrictive to the Credit Parties than those set forth in the 1.5 Lien Note Documents being refinanced, (v)such Indebtedness does not mature before the 1.5 Lien Notes being refinanced, (vi)no Subsidiary of the Borrower is required to Guarantee such Indebtedness unless such Subsidiary is (or concurrently with any such Guarantee becomes) a Guarantor hereunder and (vii)if such Indebtedness is secured by Liens on the Collateral, such Liens shall be subject to the Intercreditor Agreement."
"(a) Reduction of Borrowing Base Upon Asset Dispositions. With respect to any Disposition described in Section7.03(a)(viii), the Borrowing Base shall be automatically reduced, effective immediately upon any such Disposition, by an amount equal to (i)at any time prior to the Asset Sale Termination Date, the Net Cash Proceeds received by any Credit Party with respect to such Disposition and (ii)at all other times, the Engineered Value of the Oil and Gas Interests Disposed of (as determined by the Administrative Agent and confirmed by the Required Revolving Lenders), and the Borrowing Base as so reduced shall become the new Borrowing Base immediately upon the consummation of such Disposition, effective and applicable to the Borrower, the Administrative Agent, the Issuing Bank and the Lenders until the next redetermination or adjustment of the Borrowing Base pursuant to this Agreement; provided that, with respect to Dispositions of the South Texas Properties permitted under Section7.03(a)(viii)(B), the Borrowing Base shall be automatically reduced pursuant to this Section3.06(a) by an amount equal to $50,000,000.00 regardless of the Engineered Value of the South Texas Properties Disposed of."
"3.6 Intercreditor Agreement; Reaffirmation Agreement. The Administrative Agent shall have received a fully executed copy of each of (i)the intercreditor agreement(s), or amendments thereto, as applicable, in each case that are required by the Credit Agreement and this Amendment Agreement with respect to the incurrence of Indebtedness under the 1.5 Lien Notes, the 1.75 Lien Debt, the Second Lien Debt and the Third Lien Debt and (ii)a reaffirmation agreement substantially in the form of Annex I to this Amendment Agreement (the Reaffirmation Agreement and together with such intercreditor agreement(s), the 2017 January Agreements)."
2.4 Term Loan Limited Waiver. Administrative Agent shall have received a duly executed copy of a limited waiver to the Term Loan Facility in form and substance reasonably satisfactory to Administrative Agent; provided that a limited waiver in form and substance substantially the same as this Limited Waiver shall be deemed reasonably satisfactory to Administrative Agent.
"4.9 Modification. On and after the Effective Date, each reference in the Credit Agreement to this Agreement, hereunder, hereof or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as modified by this Limited Waiver. This Limited Waiver constitutes a Loan Document."
"| | ---|---|--- CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | By: |  | /s/ Nupur Kumar Name: |  | Nupur Kumar Title: |  | Authorized Signatory | By: |  | /s/ Warren Van Heyst Name: |  | Warren Van Heyst Title: |  | Authorized Signatory "
"| | ---|---|--- CREDIT AGRICOLE CORPORATE & INVESTMENT BANK, as a Lender | By: |  | /s/ Dixon Schultz Name: |  | Dixon Schultz Title: |  | Managing Director | By: |  | /s/ Michael Willis Name: |  | Michael Willis Title: |  | Managing Director "
"| | ---|---|--- CONSENTED, ACKNOWLEDGED AND AGREED TO BY: SUSSER PETROLEUM OPERATING COMPANY LLC SUSSER PETROLEUM PROPERTY COMPANY LLC SUSSER HOLDINGS CORPORATION SUNOCO FINANCE CORP. | By: |  | /s/ Thomas R. Miller Name: |  | Thomas R. Miller Title: |  | Chief Financial Officer STRIPES HOLDINGS LLC SUSSER HOLDINGS, L.L.C. STRIPES LLC | By: |  | /s/ Thomas R. Miller Name: |  | Thomas R. Miller Title: |  | Chief Financial Officer MID-ATLANTIC CONVENIENCE STORES, LLC SOUTHSIDE OIL, LLC MACS RETAIL LLC | By: |  | /s/ Thomas R. Miller Name: |  | Thomas R. Miller Title: |  | Chief Financial Officer "
"Applicable Rate means, for any day, with respect to any Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption ABR Spread, Eurodollar Spread or Commitment Fee Rate, as the case may be, based upon the Borrowers Leverage Ratio as of the most recent determination date, provided that, until the delivery to the Administrative Agent of the Borrowers Financial Statements pursuant to Section 5.01 for the first fiscal quarter ending after the Effective Date, the Applicable Rate shall be the applicable rates per annum set forth below in Category 3:"
"Change in Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower; (b)occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) directors of the Borrower on the date of this Agreement nor (ii) nominated or appointed by the board of directors of the Borrower; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group; or (d) the occurrence of a change in control, or other similar provision, as defined in any agreement or instrument evidencing any Material Indebtedness (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been waived in writing)."
"Federal Funds Effective Rate means, for any day, the rate calculated by the NYFRB based on such days federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate. For the avoidance of doubt, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement."
"Guarantee of or by any Person (the guarantor) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business."
"LIBO Rate means, with respect to any Eurodollar Borrowing for any applicable Interest Period or for any ABR Borrowing, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for dollars for a period equal in length to such Interest Period as displayed on page LIBOR01 of the Reuters screen that displays such rate or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Administrative Agent in its reasonable discretion (in each case, the LIBO Screen Rate) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided that, (x) if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement and (y) if the LIBO Screen Rate shall not be available at such time for a period equal in length to such Interest Period (an Impacted Interest Period), then the LIBO Rate shall be the Interpolated Rate at such time, subject to Section 2.14 in the event that the Administrative Agent shall conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error); provided further, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Notwithstanding the above, to the extent that LIBO Rate or Adjusted LIBO Rate is used in connection with an ABR Borrowing, such rate shall be determined as modified by the definition of Alternate Base Rate."
"Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document), or sold or assigned an interest in any Loan, Letter of Credit, or any Loan Document."
"Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D of the Board. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D of the Board or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage."
"(g)Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement."
"(h)Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans and such interest shall be due and payable on the date when such reimbursement is due; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment."
"(ii)Subject to the appointment and acceptance of a successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at any time upon thirty days prior written notice to the Administrative Agent, the Borrower and the Revolving Lenders, in which case, such Issuing Bank shall be replaced in accordance with Section 2.06(i)(i) above."
"(d)The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, if any, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lenders share thereof."
"(c)The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, of any prepayment under this Section: (i) in the case of prepayment of a Eurodollar Borrowing, not later than 10:00 a.m., New York City time, three (3) Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied to the applicable Loans included in the prepaid Borrowing as set forth in clause(a) above. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break funding payments pursuant to Section2.16."
"(a)The Borrower agrees to pay to the Administrative Agent a commitment fee for the account of each Revolving Lender, which shall accrue at the Applicable Rate on the daily amount of the undrawn portion of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which the Lenders Revolving Commitments terminate; it being understood that the LC Exposure of a Lender shall be included and the Swingline Exposure of a Lender shall be excluded in the drawn portion of the Revolving Commitment of such Lender for purposes of calculating the commitment fee; provided that, if such Lender continues to have any Revolving Exposure after its Revolving Commitment terminates, then such commitment fee shall continue to accrue on the daily amount of such Lenders Revolving Exposure from and including the date on which its Revolving Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Exposure. Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the date hereof; provided that any fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day)."
"Notwithstanding the foregoing, Secured Obligations arising under Banking Services Obligations or Swap Agreement Obligations shall be excluded from the application described above and paid in clause seventh if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may have reasonably requested from the applicable provider of such Banking Services or Swap Agreements."
"(f)If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05, 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lenders obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under such Sections. Application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion."
"(a)There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Loan Party, threatened against or affecting any Loan Party or any Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters set forth on Schedule 3.06) or (ii) that involve any Loan Document or the Transactions."
"(b)Except for the Disclosed Matters, (i) no Loan Party or any Subsidiary has received notice of any claim with respect to any Environmental Liability or knows of any basis for any Environmental Liability and (ii) and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, no Loan Party or any Subsidiary (A) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law (B) has become subject to any Environmental Liability, (C) has received notice of any claim with respect to any Environmental Liability or (D) knows of any basis for any Environmental Liability."
"SECTION 3.15. Capitalization and Subsidiaries. Schedule 3.15 sets forth (a) a correct and complete list of the name and relationship to the Borrower of each Subsidiary, (b) a true and complete listing of each class of each of the Borrowers authorized Equity Interests, of which all of such issued Equity Interests are validly issued, outstanding, fully paid and non-assessable, and owned beneficially and of record by the Persons identified on Schedule 3.15, and (c) the type of entity of the Borrower and each Subsidiary. All of the issued and outstanding Equity Interests owned by any Loan Party have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and non-assessable."
"(d)concurrently with any delivery of Financial Statements under clause (a) above, a certificate of the accounting firm that reported on such Financial Statements stating whether they obtained knowledge during the course of their examination of such Financial Statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);"
"SECTION 6.07. Swap Agreements. No Loan Party will, nor will it permit any Subsidiary to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (including, without limitation, commodity or foreign currency exchange exposure) (other than those in respect of Equity Interests of the Borrower or any Subsidiary), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary."
"(iv)consistent with past practice and subject to any increases approved by the board of directors of the Borrower, the Borrower may declare and pay cash dividends with respect to its Equity Interests so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such cash dividends are funded with Indebtedness permitted hereunder, the Borrower shall be in compliance with the financial covenants set forth in Section6.12 both before and immediately after giving effect (including giving effect on a pro forma basis) to the payment of such dividends and the incurrence of such Indebtedness."
"(k)one or more judgments for the payment of money in an aggregate amount in excess of $2,500,000 shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Subsidiary to enforce any such judgment or any Loan Party or any Subsidiary shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;"
"SECTION 8.02. Rights as a Lender. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Loan Party or any Subsidiary or any Affiliate thereof as if it were not the Administrative Agent hereunder."
"SECTION 8.10. Credit Bidding. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other applicable jurisdictions, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid."
"(d)If, in connection with any proposed amendment, waiver or consent requiring the consent of each Lender or each Lender directly affected thereby, the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a Non- Consenting Lender), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent, the Swingline Lender and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) the outstanding principal amount of its Loans and participations in LC Disbursements and all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender."
"(a)The Loan Parties, jointly and severally, shall pay all (i) reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication and distribution (including, without limitation, via the internet or through an Electronic System) of the credit facilities provided for herein, the preparation and administration of the Loan Documents and any amendments, modifications or waivers of the provisions of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out- of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit."
"(d)Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto."
"(b)Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words execution, signed, signature, delivery, and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES."
"(c)Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court."
"(a)A Subsidiary Guarantor shall automatically be released from its obligations under the Subsidiary Guaranty upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. In connection with any termination or release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to any Loan Party, at such Loan Partys expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent."
"(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or"
"SECTION 10.06. Reinstatement; Stay of Acceleration. If at any time any payment of any portion of the Guaranteed Obligations (including a payment effected through exercise of a right of setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion), each Loan Guarantors obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made and whether or not the Administrative Agent, the Issuing Bank and the Lenders are in possession of this Loan Guaranty. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless be payable by the Loan Guarantors forthwith on demand by the Administrative Agent."
"SECTION 10.10. Maximum Liability. Notwithstanding any other provision of this Loan Guaranty, the amount guaranteed by each Loan Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. In determining the limitations, if any, on the amount of any Loan Guarantors obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Loan Guarantor may have under this Loan Guaranty, any other agreement or applicable law shall be taken into account."
"(iii)On April 30, 2017, the Borrower shall prepay Swing Line Advances or, if the Swing Line Advances have been repaid in full, prepay Revolving Advances or, if the Revolving Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure, in an amount equal to (A) $8,100,000 minus (B) the aggregate amount of prepayments of Advances and deposits of cash collateral made pursuant to subsection 2.05(e)(ii) above with the Net Cash Proceeds of the Dispositions of South Stack Oil and Gas Properties."
"For the avoidance of doubt, the prepayments of Advances required to comply with Section 6.05(a) and Section 6.05(d) above are in addition to, and not in lieu of, any other prepayments or repayments of Advances required by the terms of this Agreement, including, but not limited to, any prepayment of the Advances required under Section 2.05(e) from the proceeds of the Disposition of any South Stack Oil and Gas Properties."
"WHEREAS, pursuant to Section 2.15 of the Existing Credit Agreement, the Borrower has requested that the Existing Credit Agreement be amended so as to create a new class of Term Loans as Refinancing Term Loans in the form of Term C Loans having identical terms with and having the same rights and obligations under the Existing Credit Agreement and the other Loan Documents as the Term B Loans, except as such terms are amended hereby, in an aggregate principal amount of $2,277,500,000.00, the proceeds of which shall be used to prepay in full the Term B Loans outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Agreement;"
"(b)No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower or Holdings of this Agreement or the Cashless Rollover Letter, or for the consummation of the transactions contemplated hereby and thereby, except for the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect."
"(c)Each of this Agreement and the Cashless Rollover Letter have been duly executed and delivered by the Borrower and Holdings. This Agreement and the Cashless Rollover Letter each constitutes a legal, valid and binding obligation of each of the Borrower and Holdings, enforceable against such applicable party in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity."
"9.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or other electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement."
" | Travelport Finance (Luxembourg) S. r.l., as Borrower ---|---  |  |   | By: | /s/ Rochelle Boas  |  | Name: Rochelle Boas  |  | Title:A Manager  |  |   | By: | /s/ John Sutherland  |  | Name: John Sutherland  |  | Title:B Manager  |  |   | TRAVELPORT LIMITED, as Holdings  |  |   | By: | /s/ Rochelle Boas  |  | Name: Rochelle Boas  |  | Title:Senior Vice President & Secretary "
"Capitalized Lease Obligation of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP as in effect on the Closing Date."
"Credit Event means the advancing of any Loan, the continuation of or conversion into a Eurodollar Loan (but excluding an advance of a Loan made for the purpose of repaying Swing Loans or paying unpaid Reimbursement Obligations), or the issuance of, or extension of the expiration date or increase in the amount of, any Letter of Credit."
"Excluded Property means (a) any feeowned real property with a fair market value of less than $2,000,000, unless requested by the Administrative Agent; (b)(i) the Excluded Leased Property and (ii) any other leased real property with a fair market value of less than $1,000,000, unless requested by the Administrative Agent; (c) any goods securing purchase money indebtedness or Capitalized Lease Obligations if the granting of a Lien to any third party is prohibited by the agreement(s) setting forth the terms and conditions applicable to such Indebtedness, but only if such Indebtedness and the Liens securing the same are permitted by Sections 7.1(d) and 7.2(h) of the Credit Agreement; provided that if and when the prohibition which prevents the granting of a Lien in any such Property is removed, terminated or otherwise becomes unenforceable as a matter of law (including, without limitation, the termination of any such security interest resulting from the satisfaction of the Indebtedness secured thereby), and notwithstanding any previous release of Lien provided by the Administrative Agent requested in connection with respect to any such Indebtedness, the Excluded Property will no longer include such Property and the Administrative Agent will be deemed to have, and at all times to have had, a security interest in such property and the Collateral will be deemed to include, and at all times to have included, such Property without further action or notice by any Person; (d) any permit or license issued to any Loan Party as the permit holder or licensee thereof or any lease to which any Loan Party is lessee thereof, in each case only to the extent and for so long as the terms of such permit, license, or lease effectively (after giving effect to Sections 9406 through 9409, inclusive, of the Uniform Commercial Code in the applicable state (or any successor provision or provisions) or any other applicable Legal Requirements) prohibit the creation by such Loan Party of a security interest in such permit, license, or lease in favor of the Administrative Agent or would result in an effective invalidation, termination or breach of the terms of any such permit, license or lease (after giving effect to Sections 9406 through 9409, inclusive, of the Uniform Commercial Code in the applicable state (or any successor provision or provisions) or any other applicable Legal Requirements), in each case unless and until any required consents are obtained; provided that the Excluded Property will not include, and the Collateral shall include and the security interest granted in the Collateral shall attach to, (x) all proceeds, substitutions or replacements of any such excluded items referred to herein unless such proceeds, substitutions or replacements would constitute excluded items hereunder, (y) all rights to payment due or to become due under any such excluded items referred to herein, and (z) if and when the prohibition which prevents the granting of a security interest in any such Property is removed, terminated, or otherwise becomes unenforceable as a matter of law, the Administrative Agent will be deemed to have, and at all times to have had, a security interest in such property, and the Collateral will be deemed to include, and at all times to have included, such Property without further action or notice by any Person; (e) Ownership Interests of any Foreign Subsidiary which, if granted, would have material adverse tax consequences for a Borrower or result in a violation of applicable Legal Requirements, unless requested by the Administrative Agent after the occurrence and during the continuation of an Event of Default; provided that Excluded Property shall not include, and the Collateral shall include, (x) nonvoting Ownership Interests of a First Tier Foreign Subsidiary owned by any Loan Party and (y) voting Ownership Interests of a First Tier Foreign Subsidiary owned by any Loan Party representing not more than sixty-five percent (65%) of the total voting power of all outstanding Ownership Interests of such Foreign Subsidiary, with Ownership Interests of such Foreign Subsidiary constituting stock entitled to vote within the meaning of Treasury regulation section 1.9562(c)(2) being treated as voting equity interests of such Foreign Subsidiary for purposes of this clause (e); and (f) Excluded Deposit Accounts."
"(iii) whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be extended to the next succeeding Business Day, provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day; and"
"Material Adverse Effect means (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise) operations, performance, Properties, liabilities (actual or contingent) or prospects of either Borrower or of the Loan Parties taken as a whole, (b) a material impairment of the ability of any Loan Party to perform its material obligations under any Loan Document to which it is a party or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document or the rights and remedies of the Administrative Agent and the Lenders thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document, in each case, which affects a significant portion of the Collateral. As used herein, the term significant portion means Collateral with a value equal to or greater than two and onehalf percent (2.5%) of the total value of the Collateral or which is otherwise material to the operation of the business of Turning Point and its Subsidiaries."
"Refinancing Transaction means any modification, refinancing, refunding, renewal, restructuring, or replacement of any Second Out Term Loans or Incremental Second Out Term Loans, if any, with the proceeds of, or any conversion of Second Out Term Loans or Incremental Second Out Term Loans, if any, into, any Indebtedness, including any amendment relating to the Second Out Term Loans or Incremental Second Out Term Loans, if any, that effectively reduces the Weighted Average Yield applicable to Second Out Term Loans or Incremental Second Out Term Loans, if any."
"Required Priority Lenders means, as of the date of determination thereof, Priority Lenders whose outstanding Priority Term Loans, Incremental Priority Term Loans, Revolving Loans, interests in Letters of Credit and Unused Revolving Credit Commitments constitute more than 50% of the sum of the total outstanding Priority Term Loans, Incremental Priority Term Loans, Revolving Loans, interests in Letters of Credit, and Unused Revolving Credit Commitments; provided that, the Commitment of, and the portion of the outstanding Priority Term Loans, Incremental Priority Term Loans, Revolving Loans, interests in Letters of Credit and Unused Revolving Credit Commitments held or deemed held by, any Defaulting Lender shall, so long as such Lender is a Defaulting Lender, be disregarded for purposes of making a determination of Required Priority Lenders. For the purposes of this definition, (a) any Lender and its Affiliates shall constitute a single Lender, and (b) in no event shall Required Priority Lenders include fewer than two (2) Priority Lenders at any time there are two (2) or more Priority Lenders."
"(d) Disbursement of Loans. Not later than 1:00 p.m. (Cincinnati time) on the date of any requested advance of a new Borrowing, subject to Section 3, each Lender shall make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Administrative Agent in Cincinnati, Ohio. The Administrative Agent shall make the proceeds of each new Borrowing available to the Borrowers at the Administrative Agents principal office in Cincinnati, Ohio, by depositing such proceeds into an account maintained at Fifth Third Bank."
"(e) Eligible Contract Participant Distributions. Notwithstanding anything contained herein to the contrary, no proceeds of any Collateral or payment made under or in respect of any Guaranty Agreement received from any person who is not an eligible contract participant as defined in the Commodities Exchange Act and regulations thereunder shall be applied to the payment of any Hedging Liability, but appropriate adjustments shall be made with respect to payments from the Loan Parties to preserve the allocation to Hedging Liability otherwise set forth in this Section."
"Section 2.16. Incremental Facilities. (a) Requests and Consents. The Borrowers may, by written notice from the Borrowers Agent to the Administrative Agent (each, an Incremental Facility Request), from time to time on or after the Closing Date, request the addition of a new tranche of term loans, which at the Borrowers option shall be either incremental priority term loans (each, an Incremental Priority Term Loan Commitment and the term loans thereunder, an Incremental Priority Term Loan) or incremental second out term loans (each, an Incremental Second Out Term Loan Commitment and the term loans thereunder, an Incremental Second Out Term Loan) and/or increases in the Revolving Credit Commitments (each, an Incremental Revolving Credit Commitment and the loans thereunder, Incremental Revolving Loans; each Incremental Priority Term Loan Commitment, Incremental Second Out Term Loan Commitment and each Incremental Revolving Credit Commitment are sometimes referred to herein individually as an Incremental Facility and collectively as the Incremental Facilities) or a combination thereof, in Dollars in an aggregate amount not to exceed $40,000,000 for all such Incremental Facilities (Incremental Facility Amount); provided that no commitment of any Lender shall be increased without the consent of such Lender. Such notice shall set forth (A) the amount of the Incremental Priority Term Loan Commitment, Incremental Second Out Term Loan Commitment or Incremental Revolving Credit Commitment being requested (which shall be in a minimum amount of $5,000,000 (or less, if an amount equal to the remaining Incremental Facility Amount) and multiples of $500,000 in excess thereof), (B) the date (an Incremental Effective Date) on which such Incremental Facility is requested to become effective (which shall not, unless otherwise agreed to by the Administrative Agent, be less than fifteen (15) Business Days nor more than sixty (60) days after the date of such notice), and (C) if an Incremental Term Loan Commitment, whether the related Incremental Term Loan is to be a Eurodollar Loan or a Base Rate Loan (and, if a Eurodollar Loan, the Interest Period therefor). There shall not be more than four (4) Incremental Facilities during the term of this Agreement. The Administrative Agent shall notify the Lenders of the proposed Incremental Facility and provide a time period ending at least five (5) Business Days prior to the Incremental Effective Date to join such Incremental Facility. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to join the Incremental Facility and, if so, whether by an amount equal to, greater than, or less than its applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to join such Incremental Facility. The Administrative Agent shall notify the Borrowers and each Lender of the Lenders responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent (which approvals shall not be unreasonably withheld), the Borrowers may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement or amendment in form and substance satisfactory to the Administrative Agent and its counsel."
"(n) the Administrative Agent shall have received such evaluations and certifications as it may reasonably require in order to satisfy itself as to the value of the Collateral, the financial condition of the Loan Parties, and the lack of material contingent liabilities of the Loan Parties, including: (i) an executed Officers Compliance Certificate, calculated based on Turning Points financial condition as of September 30, 2016, but giving effect to the initial Credit Event, evidencing a pro forma (A) Consolidated Total Leverage Ratio of less than 4.25 to 1.00 for the trailing twelve month period then ended and (B) Consolidated Senior Leverage Ratio of less than 3.25 to 1.00 for the trailing twelve month period then ended; (ii) a Consolidated closing date balance sheet for Turning Point calculated based on the Turning Points financial condition as of September 30, 2016, but giving effect to the initial Credit Event; (iii) audited Consolidated financial statements and unaudited Consolidated historical quarterly financial statements for Turning Point for the prior three years; and (iv) a certificate from Turning Points Chief Financial Officer or other officer of Turning Point acceptable to the Administrative Agent certifying that since December 31, 2015, no Material Adverse Effect has occurred;"
"Section 5.6. Tax Returns and Payments. Each Loan Party and each Subsidiary thereof has duly filed or caused to be filed all federal, state, local and other tax returns required by all applicable Legal Requirements to be filed, and has paid, or made adequate provision for the payment of, all federal, state, local and other taxes, assessments and governmental charges or levies upon it and its Property, income, profits and assets which are due and payable (other than any amount the validity of which is the subject of a Permitted Protest and other than as could not reasonably be expected to have a Material Adverse Effect). Such returns accurately reflect in all material respects all liability for taxes of any Loan Party or any Subsidiary thereof for the periods covered thereby. As of the Closing Date, except as set forth on Schedule 5.6, there is no ongoing audit or examination or, to its knowledge, other investigation by any Governmental Authority of the tax liability of any Loan Party or any Subsidiary thereof. No Governmental Authority has asserted any Lien or other claim against any Loan Party or any Subsidiary thereof with respect to unpaid taxes which has not been discharged or resolved (other than (a) any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Loan Party or Subsidiary and (b) Permitted Liens). The charges, accruals and reserves on the books of each Loan Party and each Subsidiary thereof in respect of federal, state, local and other taxes for all Fiscal Years and portions thereof since the organization of any Loan Party or any Subsidiary thereof are in the judgment of the Borrowers adequate, and the Borrowers do not anticipate any additional taxes or assessments for any of such years."
"Section 5.18. Title to Properties. As of the Closing Date, the real property listed on Schedule 5.18 constitutes all of the real property that is owned, leased, subleased or used by any Loan Party or any Subsidiary thereof. Each Loan Party and each Subsidiary thereof has such title to the real property owned or leased by it as is necessary to the conduct of its business and valid and legal title to all of its personal property and assets, except those which have been disposed of by the Loan Parties subsequent to such date which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder."
"Section 5.26. Insurance. The properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies in such amounts, with such deductibles and covering such risks (including workers compensation, public liability, business interruption and property damage insurance) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or Subsidiary operates. Schedule 5.26 sets forth a description of all such insurance currently maintained (excluding title, group health and disability, and similar types of insurance) by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, each insurance policy listed on Schedule 5.26 is in full force and effect and all premiums in respect thereof that are due and payable have been paid."
"(c) When the Pledged Interests (as defined in the First Lien Guaranty and Security Agreement) constituting Certificated Securities (as defined in the UCC) are delivered to the Administrative Agent (or its agent), the Administrative Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the Loan Parties in, such Pledged Interests, prior and superior in right to any other Person, except for Permitted Prior Liens."
Each notice pursuant to Section 6.3 (other than Section 6.3(g)) shall be accompanied by a statement of a Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein and stating what action the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
"Section 6.6. Insurance. Maintain insurance with financially sound and reputable insurance companies against at least such risks and in at least such amounts as are customarily maintained by similar businesses that are similarly situated and located and as may be required by applicable Legal Requirements and as are required by any Collateral Documents (including hazard and business interruption insurance). All such insurance shall (a) provide that no cancellation or material modification thereof shall be effective until at least thirty (30) days after receipt by the Administrative Agent of written notice thereof, except as reasonably determined by the Administrative Agent in writing, (b) name the Administrative Agent as an additional insured party thereunder and (c) in the case of each casualty insurance policy, name the Administrative Agent as lenders loss payee. On the Closing Date and from time to time thereafter, deliver to the Administrative Agent upon its request information in reasonable detail as to the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby. Without limiting the foregoing, the Borrowers shall and shall cause each appropriate Loan Party to (i) maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that is subject to a Mortgage, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994, (ii) furnish to the Administrative Agent evidence of renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof and (iii) furnish to the Administrative Agent prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area. If the Borrowers or their Subsidiaries fail to maintain such insurance, the Administrative Agent may arrange for such insurance, but at the Borrowers expense and without any responsibility on the Administrative Agents part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. The Borrowers shall give the Administrative Agent prompt notice of any loss exceeding $1,000,000 covered by their or their Subsidiaries casualty or business interruption insurance. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the sole right (subject to the Intercreditor Agreement) to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies."
"(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 7.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness, and (iii) the aggregate outstanding principal amount of such Indebtedness (excluding Non-Recourse Indebtedness) does not exceed $10,000,000 at any time outstanding;"
"(i) unsecured Subordinated Debt of the Borrowers in an aggregate amount not to exceed $21,500,000 at any time outstanding; provided that, in the case of each incurrence of such unsecured Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the incurrence of such unsecured Indebtedness, (ii) the Administrative Agent shall have received satisfactory written evidence that (A) the Consolidated Total Leverage Ratio would not be greater than the most recently applicable Consolidated Total Leverage Ratio required under Section 7.15 and (B) the Consolidated Senior Leverage Ratio would not be greater than the most recently applicable Consolidated Senior Leverage Ratio required under Section 7.15, in each case, on a Pro Forma Basis after giving effect to the issuance of any such unsecured Indebtedness, and (iii) such unsecured Indebtedness will not have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any Loans outstanding at the time such unsecured Indebtedness is incurred or a maturity date earlier than the date that is six (6) months after the latest maturity date then in effect at the time such unsecured Indebtedness is incurred;"
"(l) (i) Indebtedness of any Loan Party under the Second Lien Loan Agreement in an aggregate principal amount not to exceed (A) the Second Lien Cap Amount (as defined in the Intercreditor Agreement), minus (B) the aggregate principal amount of repayments and prepayments of loans under the Second Lien Loan Agreement and (ii) and any Permitted Refinancing thereof; provided that, in the case of any Permitted Refinancing thereof, the agent or lenders party to such refinanced, refunded or extended Indebtedness agree in writing to be bound by the terms of the Intercreditor Agreement;"
"(n) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under any license or lease agreement entered into in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrowers or their Subsidiaries or materially detract from the value of the relevant assets of the Borrowers or their Subsidiaries or (ii) secure any Indebtedness;"
"Section 7.6. Restricted Payments. Declare or pay any dividend on, or make any payment or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class of Ownership Interests of either Borrower or any Subsidiary thereof, or make any distribution of cash, property or assets to the holders of shares of any Ownership Interests of either Borrower or any Subsidiary thereof (all of the foregoing, Restricted Payments), provided that:"
"(b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value (including (x) by way of depositing with any trustee with respect thereto money or securities before due for the purpose of paying when due and (y) at the maturity thereof) any Subordinated Debt, unsecured Indebtedness or Indebtedness secured by Liens that are junior to those securing the Secured Obligations, except:"
"Section 7.10. No Further Negative Pledges; Restrictive Agreements. (a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, to secure the Secured Obligations, except (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to the Intercreditor Agreement, and (iii) pursuant to any document or instrument governing Indebtedness incurred pursuant to Section 7.1(d) (provided that any such restriction contained therein relates only to the asset or assets financed thereby) or (e) (provided that any such restriction contained therein relates only to the assets acquired in any such acquisition referred to therein)."
(B) Each Defaulting Lender shall be entitled to receive any L/C Participation Fee under Section 2.13(b) and amounts owed to it in respect of participating interest in Swing Loans under Section 2.11(e) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Percentage of the stated amount of Letters of Credit and participating interests in Swing Loans for which it has provided Cash Collateral pursuant to Section 4.
"(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring or removed Administrative Agents resignation or removal hereunder and under the other Loan Documents, the provisions of this Section 10 and Section 11.5 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent."
"Upon request by the Administrative Agent at any time, each Lender will confirm in writing the Administrative Agents authority to release or subordinate its interest in particular types or items of Property, or to release any Guarantor from its obligations under its Guaranty Agreement pursuant to this Section 10.13. In each case as specified in this Section 10.13, the Administrative Agent will, at the Borrowers expense and upon delivery by the Borrowers Agent to the Administrative Agent of an officers certificate from a Responsible Officer certifying that such release complies with this Section 10.13, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the First Lien Guaranty and Security Agreement, in each case, in accordance with the terms of the Loan Documents and this Section 10.13. In the case of any such sale, transfer or disposal of any property constituting Collateral in a transaction constituting an Asset Disposition permitted pursuant to Section 7.5, the Liens created by any of the Collateral Documents on such property shall be automatically released without need for further action by any person."
"(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate in form and substance acceptable to the Administrative Agent representing that such Foreign Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, a 10 percent shareholder of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of the Code (a U.S. Tax Compliance Certificate) and (y) executed originals of IRS Form W8BEN or W-8BEN-E, as applicable, in each case in form and substance acceptable to the Administrative Agent; or"
"(ii) The Platform is provided as is and as available. The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Borrower Materials or the adequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower Materials. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, noninfringement of thirdparty rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Loan Party or any Subsidiary, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Partys or the Administrative Agents transmission of communications through the Internet (including the Platform)."
"(b) waive, extend or postpone any date fixed by this Agreement or any other Loan Document for any payment (it being understood that a waiver of a mandatory prepayment under Section 2.8(b) shall only require the consent of the Required Priority Lenders or Required Lenders, as applicable) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;"
"(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will be payable in connection with simultaneous assignments to two or more related Approved Funds by a Lender and (B) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire."
"Section 11.13. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such Obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:"
"Section 11.16. Survival. (a) All representations and warranties set forth in Section 5 and all representations and warranties contained in any certificate or any of the Loan Documents (including any such representation or warranty made in or in connection with any amendment thereto) shall constitute representations and warranties made under this Agreement. All representations and warranties made under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are expressly made as of a specific date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or any borrowing hereunder."
"Section 11.24. Lenders and L/C Issuers Obligations Several. The obligations of the Lenders and the L/C Issuer hereunder are several and not joint. Nothing contained in this Agreement and no action taken by the Lenders or the L/C Issuer pursuant hereto shall be deemed to constitute the Lenders and the L/C Issuer a partnership, association, joint venture or other entity."
"(b) The Purchase Price will equal the sum of (i) the full amount of all Priority Lien Obligations then-outstanding and unpaid at par (including principal, accrued but unpaid interest and fees and any other unpaid amounts, including breakage costs), (ii) the Cash Collateral to be furnished to the L/C Issuer providing Letters of Credit under this Agreement in such amount (not to exceed 103% thereof) as the L/C Issuer determines is reasonably necessary to secure the L/C Issuer in connection with any such outstanding and undrawn Letters of Credit, (iii) the cash collateral to be furnished to the relevant Priority Lenders in an amount determined by such Priority Lenders to be reasonably necessary to collateralize their and their Affiliates credit risks arising out of Hedging Liability and Bank Product Liability, and (iv) all accrued and unpaid fees, expenses and other amounts (including attorneys fees and expenses) owed to the Priority Lenders under or pursuant to this Agreement and the other Loan Documents."
"Section 11.31 Joint and Several Obligations. Each Borrower hereby unconditionally and irrevocably agrees it is jointly and severally liable to the Administrative Agent and the Lenders for the Obligations arising under this Agreement and the Loan Documents, including those amounts due under Sections 9.1, 9.4 and 11.5. In furtherance thereof, each Borrower agrees that wherever in this Agreement it is provided that a Borrower is liable for a payment, such obligation is the joint and several obligation of each Borrower. Each Borrower acknowledges and agrees that its joint and several liability under this Agreement and the Loan Documents is absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever by the Administrative Agent or the Lenders. Each Borrowers liability for the Obligations arising under this Agreement and the Loan Documents shall not in any manner be impaired or affected by who receives or uses the proceeds of the Loans, Letters of Credit or other extensions of credit or for what purpose the proceeds are used, and each Borrower waives notice of borrowing requests issued by, and loans made to, other Borrowers. Each Borrower hereby agrees not to exercise or enforce any right of exoneration, contribution, reimbursement, recourse or subrogation available to such Borrower against any party liable for payment under this Agreement and the Loan Documents unless and until the Facility Termination Date. Each Borrowers joint and several liability hereunder with respect to the Obligations shall, to the fullest extent permitted by applicable law, be the unconditional liability of such Borrower irrespective of (i) the validity, enforceability, avoidance or subordination of any of the Obligations or of any other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Loan Party or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the amendment, modification, waiver, consent, extension, forbearance or granting of any indulgence by Administrative Agent or any Lender with respect to any provision of any instrument executed by any other Loan Party evidencing or securing the payment of any of the Obligations, or any other agreement now or hereafter executed by any other Loan Party and delivered to Administrative Agent or any Lender, (iv) the failure by Administrative Agent to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Obligations or Administrative Agents release of any Collateral or of its Liens upon any Collateral, (v) the release or compromise, in whole or in part, of the liability of any other Loan Party for the payment of any of the Obligations, (vi) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, in each case, if consented to by any other Borrower, or any decrease in the same, or (vii) any other circumstance that might constitute a legal or equitable discharge or defense of any Loan Party. After the occurrence and during the continuance of any Event of Default, Administrative Agent may proceed directly and at once, without notice to either Borrower, against any or all of Loan Parties to collect and recover all or any part of the Obligations, without first proceeding against any other Loan Party or against any Collateral or other security for the payment or performance of any of the Obligations, and each Borrower waives any provision that might otherwise require Administrative Agent under applicable law to pursue or exhaust its remedies against any Collateral or other Loan Party before pursuing such Borrower or its Property. Each Borrower consents and agrees that Administrative Agent shall be under no obligation to marshal any assets in favor of any Loan Party or against or in payment of any or all of the Obligations."
"The terms and provisions of Sections 11.4 (Amendments, Waivers and Consents), 11.11 (Successors and Assigns; Participations), 11.18 (Severability of Provisions), 11.19 (Counterparts; Integration; Effectiveness; Electronic Execution), 11.26 (Construction), of the Credit Agreement are hereby incorporated herein by reference, and shall apply to this Note mutatis mutandis as if fully set forth herein."
"The terms and provisions of Sections 11.4 (Amendments, Waivers and Consents), 11.11 (Successors and Assigns; Participations), 11.18 (Severability of Provisions), 11.19 (Counterparts; Integration; Effectiveness; Electronic Execution), 11.26 (Construction), of the Credit Agreement are hereby incorporated herein by reference, and shall apply to this Note mutatis mutandis as if fully set forth herein."
"For Value Received, the undersigned, Turning Point Brands, Inc., a Delaware corporation (Turning Point), and North Atlantic Trading Company, Inc., a Delaware corporation (NATC and together with Turning Point, the Borrowers), hereby unconditionally promise to pay to _________________________ (the Lender) or its registered assigns at the principal office of Fifth Third Bank, an Ohio banking corporation, as Administrative Agent, in Cincinnati, Ohio (or such other location as the Administrative Agent may designate to the Borrowers), in immediately available funds, the principal sum of ___________________ Dollars ($__________) or, if less, the aggregate unpaid principal amount of the Incremental Second Out Term Loan made or maintained by the Lender to the Borrowers pursuant to the Credit Agreement, in installments in the amounts called for in the Credit Agreement, together with interest on the principal amount of such Incremental Second Out Term Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement."
"(c) Net income (if positive), of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to Turning Point or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or taxes"
"Section 1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the] [the relevant] Assigned Interest, (ii) [the] [such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Turning Point, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document."
"1. So long as any Senior Indebtedness shall remain outstanding and unpaid or the Senior Creditors have any obligation to extend credit to either Borrower, no payment either of principal or interest (notwithstanding the expressed maturity or any time for the payment of principal of or interest on any Subordinated Indebtedness) shall be made on Subordinated Indebtedness except with the Administrative Agents prior written consent. The Subordinated Creditor will not take any action, whether by suit or otherwise, to compel or enforce the collection of Subordinated Indebtedness, including the filing of any bankruptcy, insolvency, or similar proceeding, nor will the Subordinated Creditor use Subordinated Indebtedness by way of counterclaim, set-off, recoupment, or otherwise so as to diminish, discharge or otherwise satisfy in whole or in part any indebtedness, obligation, or liability of the Subordinated Creditor to [either Borrower], whether now existing or hereafter arising and howsoever evidenced."
"Within ninety (90) days following the Closing Date (which date may be extended by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a Collateral Access Agreement for each location set forth on Schedule 5.18 to the Credit Agreement, and each such Collateral Access Agreement shall be in form and substance satisfactory to the Administrative Agent; provided, however, that if the Loan Parties fail to obtain any Collateral Access Agreement, then the requirements of this section shall be deemed to be satisfied if the Loan Parties used commercially reasonable efforts to obtain the same but were unable to do so. ---|---|--- "
"WHEREAS, the Borrower and the Guarantors have requested that the Requisite Lenders (including the Amendment No. 14 Consenting Term Lenders and the Amendment No. 14 Consenting Revolving Lenders) consent to the establishment of a new Class of Tranche B Term Loans under the Credit Agreement (the Series F-3 Tranche B Term Loans), the proceeds of which will be used to repay all of the outstanding Tranche B Term Loans under the Credit Agreement (other than the Series F Tranche B Term Loans) on the Amendment Effective Date;"
"WHEREAS, (i) each Amendment No. 14 Converting Term Lender has agreed, on the terms and conditions set forth herein, to consent to the amendments to the Credit Agreement as provided in Section 2 below, (ii) each Amendment No. 14 Converting Term Lender that has indicated on its signature page that it is consenting to convert its Tranche B Term Loans (each such converted Tranche B Term Loan, a Converted Term Loan and, collectively, the Converted Term Loans) (other than any Series F Tranche B Term Loans) into Series F-3 Tranche B Term Loans on the Amendment Effective Date will have up to all of its outstanding Tranche B Term Loans other than any Series F Tranche B Term Loans (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Amendment Effective Date) converted into a like principal amount of Series F-3 Tranche B Term Loans effective as of the Amendment Effective Date and (iii) the Additional Series F-3 Tranche B Term Loan Lender has agreed to make an Additional Series F-3 Tranche B Term Loan (as defined in Exhibit A) pursuant to the Additional Series F-3 Tranche B Term Commitment (as defined in Exhibit A) in a principal amount equal to $3,060,000,000 minus the principal amount of Converted Term Loans, the proceeds of which shall be applied to repay in full any Non-Converted Term Loans (as defined in Exhibit A);"
"(iv) The Administrative Agent shall have received an officers certificate from the Borrower including a representation by a Responsible Officer that (i) no Default or Event of Default exists and is continuing on the date hereof and (ii) all representations and warranties contained in the Credit Agreement and in this Amendment are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (provided that representations and warranties that are qualified by materiality shall be true and correct in all respects)."
" | ISTA PHARMACEUTICALS, LLC ---|---  |   |   | By: Bausch & Lomb Pharma Holdings Corporation, its member  |   | By: | /s/ Linda A. LaGorga  |  | Name: | Linda A. LaGorga  |  | Title: | Treasurer "
Signed by |  |  ---|---|--- DermaTech Pty Limited (ACN 003 982 161) |  |  in accordance with section127 of the Corporations Act 2001 by a director and secretary/director: |  |   |  |   |  |  /s/ Joseph Peter Basile |  | /s/ Linda A. LaGorga Signature of director |  | Signature of director/secretary  |  |  Joseph Peter Basile |  | Linda A. LaGorga  |  |  Name of director (please print) |  | Name of director/secretary (please print) 
"Acquisition Debt Escrow Debt Documents means the definitive documentation governing any applicable Acquisition Escrow Debt, including the applicable Acquisition Debt Escrow Documents and any other documents entered into by the Borrower, VPI and/or Acquisition Debt Escrow Issuer in connection with any Acquisition Escrow Debt; provided that such documents shall require that (a) if the applicable Escrow Acquisition shall not be consummated on or before the corresponding Escrow Acquisition Termination Date, such Acquisition Escrow Debt shall be redeemed in full (the Acquisition Escrow Debt Redemption) no later than the third Business Day after the Escrow Acquisition Termination Date and (b) the Acquisition Debt Escrowed Funds shall be released from the Acquisition Debt Escrow Account on or before three Business Days after the Escrow Acquisition Termination Date (A) upon the consummation of the Escrow Acquisition and applied to finance a portion of such Escrow Acquisition or (B) to effectuate the Acquisition Escrow Debt Redemption."
"Adverse Proceeding means any action, suit, claim, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of its Subsidiaries) pursuant to any statute, regulation, ordinance, common law, equity or any other legal principle or process, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower or any of its Subsidiaries, threatened against or affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its Subsidiaries."
"Bausch & Lomb Senior Interim Loan Documents means customary documentation for interim unsecured bridge loans; provided, that the Bausch & Lomb Interim Loans (i) are not guaranteed by any Subsidiary of the Borrower that is not a Guarantor, (ii) are not secured by a Lien on any assets of the Borrower or any of its Subsidiaries, (iii) have a final maturity date not prior to the date that is at least 180 days after the latest Term Loan Maturity Date and (iv) the terms of such Bausch & Lomb Interim Loans do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the latest Term Loan Maturity Date (other than mandatory prepayments with any Cash proceeds from any Bausch & Lomb Equity Financing or from the issuance of Bausch & Lomb New Senior Notes)."
"Collateral Documents means the Second Amended and Restated Pledge and Security Agreement, the Canadian Pledge and Security Agreement, the Barbados Security Documents, the U.S. Mortgages, the Canadian Mortgages, the Quebec Security Documents, the Luxembourg Security Documents, the Swiss Security Documents, the Intellectual Property Security Agreements and all other instruments, documents and agreements delivered by or on behalf or at the request of any Credit Party pursuant to this Agreement, the Original Credit Agreement, the First Amended and Restated Credit Agreement, the Second Amended and Restated Credit Agreement or any of the other Credit Documents in order to grant to, or perfect, preserve or protect in favor of, Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations or to protect or preserve the interest of the Collateral Agent or the Secured Parties therein."
"(j)other non-Cash charges (including impairment charges and other write offs of intangible assets and goodwill, but excluding ~~any such non-Cash charge~~ ~~to the extent that it represents an accrual or reserve for potential Cash items in any future period or ~~amortization of a prepaid Cash charge that was paid in a prior period); provided that if any such non-Cash charge (or any portion thereof) represents an accrual or reserve for any potential Cash items in any future period, (i) the Borrower may elect not to add back"
"Consolidated Total Debt means, as at any date of determination, the aggregate principal amount of all Indebtedness of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP (net of unrestricted and unencumbered Cash and Cash Equivalents of Borrower and its Subsidiaries as of such date in an amount not to exceed $600,000,000), provided that the term Indebtedness (for purposes of this definition) shall not include any letter of credit, except to the extent of unreimbursed amounts thereunder, provided that Consolidated Total Debt shall not include (x) any unreimbursed amount under commercial letters of credit until one (1) day after such amount is drawn and (y) the Net Mark-to-Market Exposure of any Hedge Agreement, provided further that, for purposes of the definition of Consolidated Total Debt the Indebtedness in respect of convertible debt securities shall be deemed to be the aggregate principal amount thereof outstanding as of such date of determination."
"Consolidated Working Capital Adjustment means, for any period on a consolidated basis, the Consolidated Working Capital as of the beginning of such period minus the Consolidated Working Capital as of the end of such period. The Consolidated Working Capital Adjustment for any period may be a positive or negative number. In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any Permitted Acquisition or any sales, transfers or other dispositions of any material assets outside the ordinary course of business during such period."
"Dermik Acquisition means the acquisition of certain assets and rights, and assumption of certain liabilities, relating to Dermik, a business unit of Sanofi, by Borrower and certain of its wholly-owned Subsidiaries pursuant to that certain asset purchase agreement, dated as of July8, 2011, by and among Sanofi, Borrower and Valeant International (Barbados) SRL, including the disclosure letter, schedules, annexes and exhibits attached thereto and all material documents related to the consummation of the transactions contemplated thereby, as amended, modified and supplemented."
"Eligible Assignee means any Person other than a natural Person that is (i) a Lender, an Affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof) or (ii) a commercial bank, insurance company, investment or mutual fund or other entity that is an accredited investor (as defined in Regulation D under the Securities Act or as defined under the Canadian Securities Administrators National Instrument 45-106, as amended, supplemented, replaced or otherwise modified from time to time) and which extends credit or buys loans in the ordinary course of business; provided, neither any Credit Party nor any Affiliate thereof shall be an Eligible Assignee."
"Inaccurate Information means any financial reporting or financial statements or projections or pro forma financial information (and any related disclosures) maintained or provided on or prior to April 6, 2016 by or relating to Borrower which recognized revenue incorrectly as described in Borrowers press release dated March 21, 2016, Borrowers Form 12b-25 filing dated February 29, 2016 and Borrowers Form 8-K filing dated March 21, 2016, including any such reporting as it may have impacted Borrowers balance sheet, consolidated statements of income and cash flows for such periods."
"Medicis Acquisition Agreement means the Agreement and Plan of Merger (together with all exhibits and schedules thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, collectively, the Medicis Acquisition Agreement), dated as of September 2, 2012, among the Borrower, VPI, one of Borrowers other wholly owned U.S. domiciled subsidiaries and Medicis Pharmaceutical Corporation."
"Obligations means all obligations of every nature of each Credit Party (and, with respect to any obligations in respect of Hedge Agreements and Cash Management Agreements, any Subsidiary of a Credit Party) owing to any Secured Party (including former Agents) (but limited, in the case of obligations in respect of Hedge Agreement and Cash Management Agreements, to those obligations owing to Lender Counterparties) under any Credit Document, Hedge Agreement or Cash Management Agreement whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party (or, with respect to any obligations in respect of Hedge Agreements and Cash Management Agreements, any Subsidiary of a Credit Party) for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge Agreements or Cash Management Agreements, fees, expenses, indemnification or otherwise."
"Subsidiary means, with respect to any Person, any corporation, company, partnership, limited liability company, unlimited liability company, association, society with restricted liability, Joint Venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, legally or beneficially, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof; provided, in no event shall any Specified Joint Venture with respect to which such Person is party be considered to be a Subsidiary. Notwithstanding the foregoing (and except for purposes of Sections 4.11, 4.13, 4.18, 4.19, 4.23, 4.25, 5.3, 5.8, 5.9, 8.1(j) and 8.1(k), and the definition of Unrestricted Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for all purposes of this Agreement."
"Sun Transactions means collectively, (a) the Sun Acquisition and other related transactions contemplated by the Sun Acquisition Agreement; (b) the incurrence of new Term Loans hereunder pursuant to a Joinder Agreement in accordance with Section 2.25 to be entered into after the Amendment No. 10 Effective Date; (c) the issuance of the Sun New Senior Notes; (d) the incurrence of the Sun Interim Loans, if any; (e) the refinancing, repayment, termination and discharge of (i) all outstanding loans and termination of commitments under any credit facility (other than under certain ordinary course local credit lines) to which Salix Pharmaceuticals, Ltd. or any of its subsidiaries is a party, (ii) Salix Pharmaceuticals, Ltd.s 6.00% Senior Notes due 2021 and (iii) Salix Pharmaceuticals, Ltd.s 1.50% Convertible Senior Notes due 2019 and 2.75% Convertible Senior Notes due 2015, together with any cash payments required to unwind any hedges or warrants related thereto (the Sun Refinancing); and (f) the payment of all fees and expenses owing in connection with the foregoing."
"Tranche B Term Loan Commitment means the commitment of a Lender to make or otherwise fund a Tranche B Term Loan on the Third Restatement Date and Tranche B Term Loan Commitments means such commitments of all Lenders in the aggregate. The amount of each Lenders Tranche B Term Loan Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Tranche B Term Loan Commitments as of the Third Restatement Date is $600,000,000."
"in the applicable unpaid amount in same day funds at the Principal Office of Swing Line Lender. In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lenders participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable."
"Reimbursement Date) in an Equivalent Amount in Dollars and in same day funds equal to the amount of such honored drawing; provided that anything contained herein to the contrary notwithstanding, (i) unless Borrower shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is honored that Borrower intends to reimburse Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, Borrower shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an Equivalent Amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions specified in Section 3.3, Lenders with Revolving Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied directly by Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing; and provided, further, that if for any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing, Borrower shall reimburse Issuing Bank, on demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of proceeds of such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the terms and conditions set forth herein, and Borrower shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.4(d)."
"(i)to convert at any time all or any part of any Term Loan or Revolving Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided that a Eurodollar Rate Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Borrower shall pay all amounts due under Section 2.18 in connection with any such conversion;"
"(i)Borrower agrees to pay on the Series C Tranche B Term Loan Funding Date to Administrative Agent, for the account of each New Term Loan Lender party to the Series C Tranche B Term Loan Joinder Agreement, (1) as fee compensation for the funding of such New Term Loan Lenders Series C Tranche B Term Loans, a closing fee in an amount equal to 0.50% of the aggregate principal amount of such New Term Loan Lenders Series C Tranche B Term Loans funded as of the Series C Tranche B Term Loan Funding Date, and (2) a nonrefundable ticking fee on the amount of such New Term Loan Lenders respective New Term Loan Commitment (as in effect on such date), for the period from October 4, 2012 to but excluding the Series C Tranche B Term Loan Funding Date, at a rate per annum, calculated on the basis of a year of 360 days and the actual number of days expired during the applicable period, equal to 3.25%."
"(j)Borrower agrees to pay on the Amendment No. 3 Effective Date to the Administrative Agent, for the account of (i) each New Term Loan Lender (as defined in Amendment No. 3) party to Amendment No. 3, as fee compensation for the funding of such New Term Loan Lenders Series A-1 Tranche A Term Loans, a closing fee in an amount equal to 0.10% of the aggregate principal amount of such New Term Loan Lenders Series A-1 Tranche A Term Loans funded on the Amendment No. 3 Effective Date, and (ii) each New Revolving Loan Lender (as defined in Amendment No. 3) party to Amendment No. 3, as fee compensation for the establishment of the New Revolving Loan Commitments (as defined in Amendment No. 3) of such New Revolving Loan Lender, a closing fee in an amount equal to 0.10% of the aggregate principal amount of the New Revolving Commitments of such New Revolving Loan Lender established as of the Amendment No. 3 Effective Date; provided that, notwithstanding the foregoing, (x) the closing fee payable to any New Term Loan Lender in respect of Exchanged Series A-1 Tranche A Term Loans (as defined in Amendment No. 3) shall be 0.10% of the aggregate principal amount of such Exchanged Series A-1 Tranche A Term Loans, and (y) with respect to any New Revolving Loan Lender that had outstanding Revolving Commitments immediately prior to the Amendment No. 3 Effective Date, the closing fee payable to such New Revolving Loan Lender in respect of the aggregate principal amount of its New Revolving Loan Commitments"
"(k)Borrower agrees to pay: (i) on the Series A-2 Tranche A Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Series A-2 Tranche A Term Loan Joinder Agreement, (1) as fee compensation for the funding of such New Term Loan Lenders Series A-2 Tranche A Term Loans, a closing fee in an amount equal to 1.50% of the aggregate principal amount of such New Term Loan Lenders Series A-2 Tranche A Term Loans funded as of the Series A-2 Tranche A Term Loan Funding Date and (2) a nonrefundable ticking fee on the aggregate principal amount of such New Term Loan Lenders Series A-2 Tranche A Term Loan Commitment as of June 28, 2013, for the period from July 29, 2013, to but excluding the Series A-2 Tranche A Term Loan Funding Date, at a rate per annum, calculated on the basis of a year of 360 days and the actual number of days expired during the applicable period, equal to 2.25%; and (ii) on the Series E Tranche B Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Series E Tranche B Term Loan Joinder Agreement, (1) as fee compensation for the funding of such New Term Loan Lenders Series E Tranche B Term Loans, a closing fee in an amount equal to 1.50% of the aggregate principal amount of such New Term Loan Lenders Series E Tranche B Term Loans funded as of the Series E Tranche B Term Loan Funding Date and (2) a nonrefundable ticking fee on the aggregate principal amount of such New Term Loan Lenders Series E Tranche B Term Loan Commitment as of June 28, 2013, for the period from July 29, 2013, to but excluding the Series E Tranche B Term Loan Funding Date, at a rate per annum, calculated on the basis of a year of 360 days and the actual number of days expired during the applicable period, equal to 3.75%."
"Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche A Term Loans and/or the Tranche B Term Loans as the case may be, in accordance with Sections 2.13, 2.14 and 2.15, as applicable; and (y) the Tranche A Term Loans and the Tranche B Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Tranche A Term Loan Maturity Date and the Tranche B Term Loan Maturity Date, respectively. The Borrower shall repay to the Administrative Agent on the Amendment No. 14 Effective Date, for the ratable account of the Lenders holding Non-Converted Term Loans, the outstanding balance of such Non- Converted Term Loans."
"the applicable Lenders, (I) in the case of clause (x) above, a prepayment premium of 1% of the amount of the Series A Tranche B Term Loans being prepaid and (II) in the case of clause (y) above, a payment equal to 1% of the aggregate amount of the applicable Series A Tranche B Term Loans outstanding immediately prior to such amendment."
"Notwithstanding Section 2.13(a) above, in the event that on or prior to the six month anniversary of the Series C-1 Tranche B Term Loan Funding Date, the Borrower (x) makes any prepayment of the Series C-1 Tranche B Term Loans in connection with any Repricing Transaction or (y) effects any amendment of the Credit Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (I) in the case of clause (x) above, a prepayment premium of 1% of the amount of the Series C-1 Tranche B Term Loans being prepaid and (II) in the case of clause (y) above, a payment equal to 1% of the aggregate amount of the applicable Series C-1 Tranche B Term Loans outstanding immediately prior to such amendment."
"(e)Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period through the transfer of such matching deposit or other borrowing from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19."
"interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any Applicable Law regarding capital or liquidity adequacy, reserve requirements or similar requirements (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lenders Loans or Revolving Commitments or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy); provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed a change of law, regardless of the date enacted, adopted or issued, then from time to time, within five Business Days after receipt by Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after tax basis for such reduction. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error."
(x)the applicable interest rate in relation to that interest payment shall be (i) the interest rate which would have applied to that interest payment as provided for in Section 2.8 divided by (ii) 1 minus the rate at which the relevant Swiss Federal Withholding Tax deduction is required to be made under Swiss domestic tax law and / or applicable double taxation treaties (where the rate at which the relevant Swiss Federal Withholding Tax deduction is required to be made is for this purpose expressed as a fraction of 1); and
"3.1Third Restatement Date. The effectiveness of this Agreement and the obligation of each Lender to make a Tranche B Term Loan, a Revolving Loan, or to issue a Letter of Credit, in each case on the Third Restatement Date are subject to the prior or concurrent satisfaction, or waiver in accordance with Section 10.5, of the following conditions:"
"4.10Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect. None of Borrower or any of its Subsidiaries (a) is in violation of any Applicable Laws (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with respect to any Governmental Authority or any final judgments, writs, injunctions, decrees, rules or regulations of any Governmental Authority, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect."
"4.13Environmental Matters. None of Borrower or any of its Subsidiaries or any of their respective Facilities or operations are subject to any actual or, to Borrowers knowledge, as applicable, threatened, order, consent decree or settlement agreement with any Person pursuant to any Environmental Law or relating to any Environmental Claim or any Release or threat of Release of Hazardous Materials, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of Borrower or any of its Subsidiaries has received any written notice of non-compliance with any Environmental Law, letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9604) or any comparable state law, except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Facility is free from the presence of Hazardous Materials, except for such materials the presence of which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. There are and, to each of Borrowers and its Subsidiaries knowledge, have been no conditions, occurrences, or Release or threat of Release of Hazardous Materials that could reasonably be expected to form the basis of ~~a~~ an Environmental Claim against Borrower or any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of Borrower or any of its Subsidiaries or, to any Credit Partys knowledge, any predecessor of Borrower or any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, and none of Borrowers or any of its Subsidiaries operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260 or 270 or any state or other equivalent, in each case, except as, individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect. Borrower and each of its Subsidiaries, Facilities and operations are in compliance with applicable Environmental Laws, in each case, except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"4.17Employee Matters. None of Borrower or any of its Subsidiaries is engaged in any unfair labor practice or other labor proceeding (including certification) or complaint that could reasonably be expected to have a Material Adverse Effect. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is (a) no unfair labor practice complaint pending against Borrower or any of its Subsidiaries or, to the knowledge of Borrower, threatened against any of them before the National Labor Relations Board or a labor board of any other jurisdiction, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement pending against Borrower or any of its Subsidiaries or, to the knowledge of Borrower, threatened against any of them, and none of Borrower or any of its Subsidiaries is in violation of any collective bargaining agreement, (b) no strike or work stoppage in existence or, to the knowledge of Borrower, threatened involving Borrower or any of its Subsidiaries and (c) to the knowledge of Borrower, no union representation question existing with respect to the employees of Borrower or any of its Subsidiaries and, to the knowledge of Borrower, no union organization activity is taking place with respect to the employees of Borrower or any of its Subsidiaries. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, all payments due from any Canadian Credit Party for employee health and welfare insurance have been paid or accrued as a liability on the books of such Canadian Credit Party and such Canadian Credit Party has withheld and remitted all employee withholdings to be withheld or remitted by it and has made all employer contributions to be made by it, in each case, pursuant to applicable law on account of the Canada Pension Plan maintained by the Government of Canada, employment insurance, employee income taxes, and any other required payroll deduction."
"4.21Compliance with Statutes, etc. Each of Borrower and its Subsidiaries is in compliance with all Applicable Laws imposed by all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Borrower or any of its Subsidiaries as currently operated or conducted), except such non-compliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"(6)Notwithstanding anything in this Agreement or any other Credit Document to the contrary (including this Section 5.10 and Sections 5.11 and 5.13), no Credit Document shall require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Credit Parties, if, and for so long as, Administrative Agent, in consultation with Borrower, determines in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets (taking into account any adverse tax consequences to Borrower and its Subsidiaries (including the imposition of withholding or other material taxes)), shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom. Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of the Guarantee (or any other guarantee in support of the Obligations) by any Subsidiary where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the other Credit Documents."
"6.2Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or any income, profits or royalties therefrom, or file or permit the filing of any financing statement or other similar notice of any Lien with respect to any such property, asset, income, profits or royalties under the UCC of any State, the PPSA of any province or territory or under any similar recording or notice statute of jurisdictions in which Credit Parties are organized or under any applicable intellectual property laws, rules or procedures, except:"
"(d)Liens incurred in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;"
"(k)outbound licenses of patents, copyrights, trademarks and other Intellectual Property rights granted by Borrower or any of its Subsidiaries in the ordinary course of business and not interfering in any material respect with the ordinary conduct of, or materially detracting from the aggregate value of, the business of Borrower or such Subsidiary (taking into account the value of the license as well);"
"(h)other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and"
"(a)Interest Coverage Ratio. Borrower shall not permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2014, to be less than (i) 2.25:1.00 through the Fiscal Quarter ending March 31, 2016, (ii) 2.75:1.00 through the Fiscal Quarter ending June 30, 2016"
"(a)any Subsidiary of Borrower may be (i) merged ~~or~~ , amalgamated or consolidated with or merged, amalgamated or consolidated into Borrower or any other Subsidiary of Borrower; provided that (A) in the case of such a merger ~~or~~ , amalgamation or consolidation involving Borrower, Borrower shall be the surviving Person or a Person that continues as ~~an~~ a merged, amalgamated or consolidated corporation and (B) in the case of such a merger ~~or~~ , amalgamation or consolidation involving any other Guarantor (and not involving Borrower), the surviving Person, or a Person that continues as ~~an~~ a merged, amalgamated or consolidated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge ~~or~~ , amalgamate or consolidate with a non-Guarantor Subsidiary so long as (x) such non-Guarantor Subsidiary merges ~~or~~ , amalgamates or consolidates with the Borrower or a Guarantor substantially simultaneous with, or no longer than one Business Day after the internal merger ~~or~~ , amalgamation or consolidation involving a Guarantor, with the surviving person, or the Person that continues as ~~an~~ a merged, amalgamated or consolidated corporation from such subsequent merger ~~or~~ , amalgamation or consolidation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger ~~or~~ , amalgamation or consolidation that such merger ~~or~~ , amalgamation or consolidation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, reorganized, liquidated, wound up or dissolved if Borrower determines in good faith that such reorganization, liquidation, winding up or dissolution is in the best interest of Borrower and is not materially disadvantageous to the Lenders;"
"(i)Investments made in accordance with Section 6.6, other than pursuant to clause (g) thereof (which Investment may take the form of (x) a merger, amalgamation or similar transaction so long as such merger, amalgamation or similar transaction would be permitted by clause (a) of this Section 6.8 if the acquired Person was, initially, a Subsidiary of Borrower or (y) the acquisition by purchase or otherwise of the business or fixed assets of any Subsidiary or any division or line of business or other business unit of any Subsidiary (including any such acquisition that would not constitute an Investment, so long as such acquisition (1) would be permitted by Section 6.6(d) if such acquisition were of Securities or Equity Interests of such Subsidiary or a division or line of business or other business unit of such Subsidiary and/or (2) is between and/or among Credit Parties));"
"6.12Conduct of Business. From and after the Third Restatement Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged in by such Credit Party or Subsidiary on the Third Restatement Date and similar or related or ancillary businesses and (ii) such other lines of business as may be consented to by Requisite Lenders."
"(a)Failure to Make Payments When Due. Failure by Borrower to pay (i) when due any installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any Loan or any fee or any other amount due hereunder within three days after the date due; or"
"(c)Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.6, Section 5.1(e), Section 5.2 or Section 6 ~~; or~~ , provided that a Default as a result of a breach of Section 6.7 (a Financial Covenant Event of Default) shall not constitute an Event of Default with respect to any Term Loans, Extended Term Loans and/or New Term Loans unless and until the Revolving Credit Lenders have declared all amounts outstanding with respect to the Revolving Commitments, Revolving Loans or other Revolving Exposure of the Revolving Credit Lenders to be immediately due and payable and all outstanding Revolving Commitments to be immediately terminated, in each case in accordance with this Agreement; or"
"9.1Appointment of Agents. J.P. Morgan and Morgan Stanley are hereby appointed Co-Syndication Agents hereunder, and each Lender hereby authorizes J.P. Morgan and Morgan Stanley to act as Co-Syndication Agents in accordance with the terms hereof and the other Credit Documents. Barclays is hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit Documents and each Lender hereby authorizes Barclays to act as Administrative Agent and Collateral Agent in accordance with the terms hereof and of the other Credit Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and the other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Borrower or any of its Subsidiaries. Each Co-Syndication Agent, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder (in its capacity as a Co-Syndication Agent) to any of its Affiliates. As of the Third Restatement Date, each of J.P. Morgan and Morgan Stanley, in each of their capacities as a Co-Syndication Agent, shall not have any obligations but shall be entitled to all benefits of this Section 9. The Syndication Agents and any Agent described in clause (d) of the definition thereof may resign from such role at any time, with immediate effect, by giving prior written notice thereof to Administrative Agent and Borrower."
"(b)In addition to the foregoing, Collateral Agent may resign at any time by giving prior written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by Requisite Lenders. Administrative Agent shall have the right to appoint a financial institution as Collateral Agent hereunder, subject to the reasonable satisfaction of Borrower (other than at any time an Event of Default shall have occurred and then be continuing) and the Requisite Lenders and Collateral Agents resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Collateral Agent by Borrower (other than at any time an Event of Default shall have occurred and then be continuing) and the Requisite Lenders or (iii) such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of"
"10.2Expenses. Whether or not the transactions contemplated hereby shall be consummated, Borrower agrees to pay promptly (a) all the actual and reasonable out-of-pocket costs and expenses incurred in connection with the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b) all the reasonable out-of-pocket costs of furnishing all opinions by counsel for Borrower and the other Credit Parties; (c) the reasonable and documented out- of-pocket fees, expenses and disbursements of counsel to Agents and Issuing Bank in connection with the negotiation, preparation, execution and"
"(v)amend, modify or waive this Agreement, the Second Amended and Restated Pledge and Security Agreement, the Canadian Pledge and Security Agreement, the Quebec Security Documents, the Barbados Security Documents, the Luxembourg Security Documents or the Swiss Security Documents, so as to alter the ratable treatment of Obligations arising under the Credit Documents and Obligations arising under Hedge Agreements or Cash Management Agreements or the definition of Lender Counterparty, Hedge Agreement, Cash Management Agreement, Obligations, or Secured Obligations (as defined in any applicable Collateral Document) in each case in a manner adverse to any Lender Counterparty with Obligations then outstanding without the written consent of any such Lender Counterparty;"
"(viii)increase any Delayed Draw Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided that no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Delayed Draw Commitment of any Lender; or"
"(e)Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Third Restatement Date or as of the Assignment Effective Date that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Revolving Commitments or Loans or any interests therein shall at all times remain within its exclusive control)."
"10.17Confidentiality. Each Agent and each Lender (which term shall for the purposes of this Section 10.17 include the Issuing Bank) shall hold all Non-Public Information regarding Borrower and its Subsidiaries and their businesses identified as such by Borrower or such Subsidiary (or which is reasonably apparent to be of a confidential nature, even if not so identified) and obtained by such Agent and such Lender pursuant to the requirements hereof in accordance with such Agents and such Lenders customary procedures for handling confidential information of such nature, it being understood and agreed by Borrower that, in any event, the Administrative Agent may disclose such information to the Lenders and each Agent and each Lender may make (i) disclosures of such information to Affiliates of such Lender and to their respective agents and advisors (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to Borrower and its obligations (provided that such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17), (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to Credit Parties received by it from any Agent or any Lender, (iv) disclosures necessary in connection with the exercise of any remedies hereunder or under any other Credit Document, (v) disclosures required or requested by any Governmental Authority or pursuant to legal or judicial process; provided that, unless specifically prohibited by Applicable Law or court order, each Lender and each Agent shall make reasonable efforts to notify Borrower of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such Non- Public Information reasonably in advance of disclosure of such information (and each Agent and Lender shall cooperate with Borrower and its Subsidiaries (at the sole cost and expense of Borrower and its Subsidiaries) to limit any such disclosure) and (vi) disclosures to any other Person with the written consent of the Borrower. In addition, each Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to service providers to Agents and Lenders in connection with the administration and management of this Agreement and the other Credit Documents."
"(i)Each Credit Party must pay the Collateral Agent, as an independent and separate creditor, an amount equal to each Secured Party Claim on its due date (each a Collateral Agent Claim). For the purposes of Belarusian law, the Collateral Agent is the joint and several creditor with each other Secured Party in respect of each Secured Party Claim, having an independent right to demand and enforce payment of each Collateral Agent Claim on the terms set out in clauses (v) to (xii) below."
"(m) fees and expenses in connection with the amendment, amendment and restatement, supplement, modification or waiver of this Agreement or any other Indebtedness, whether or not successful: | $[___,___,___] ---|--- (n) costs, fees and expenses relating to (i) Philidor Rx Services-related matters and/or product pricing-related matters, (ii) the Inaccurate Information and (iii) any review by the Board of Directors, including any special or ad hoc committee thereof, related to any of the foregoing items in (i) and (ii). Without limiting the items related to the foregoing sentence, such costs, fees and expenses may include, without limitation, all costs, fees and expenses in connection with (w) any employee retention and/or severance implemented after March 1, 2016, (x) any hearing, investigation or litigation related to any of the foregoing, (y) the revision, restatement or supplement of corresponding financial information related to the Borrower as a result of any of the foregoing and (z) any advisors, counsel or consultants related to any of the foregoing, in an aggregate amount under this clause (n) not to exceed $175,000,000: | $[___,___,___] (o) the amount of any expense, charge or loss, in each case that is actually reimbursed or reasonably expected to be reimbursed within 365 days by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance (it being understood that if the amount received in Cash under any such agreement or insurance in any period exceeds the amount of expense, charge or loss during such period, any excess amount received may be carried forward and applied against any expense, charge or loss in any future period); provided that if any expected reimbursements added back pursuant to this clause (o) are not received within the time period required hereby, such amounts shall be subtracted from Consolidated Adjusted EBITDA with respect to such period: | $[___,___,___] Sum of (i)(a) through (i)(o) = (i) | $[___,___,___] (ii) ~~other~~ non-Cash gains increasing Consolidated Net Income for such period (excluding any such non-Cash gain to the extent it represents the reversal of an accrual or reserve for potential Cash items in any prior period and any such non-Cash gain relating to Cash received in a prior period (or to be received in a future period)):"
"REFINANCING AMENDMENT NO. 2 AND INCREMENTAL ASSUMPTION AGREEMENT NO. 3, dated as of February28, 2017 (this Amendment), to the Credit Agreement, dated March19, 2014 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the Credit Agreement; the Credit Agreement as amended hereby, the Amended Credit Agreement) among MALLINCKRODT PLC, a public limited company incorporated in Ireland with registered number 522227 (the Parent), MALLINCKRODT INTERNATIONAL FINANCE S.A., a public limited liability company (socit anonyme) incorporated under the laws of the Grand Duchy of Luxembourg (Luxembourg), having its registered office at 124, boulevard de la Ptrusse, L-2330 Luxembourg, and registered with the Luxembourg Trade and Companies Register (R.C.S. Luxembourg) under number B 172.865 (the Lux Borrower), MALLINCKRODT CB LLC, a Delaware limited liability company (the Co-Borrower and, together with the Lux Borrower, the Existing Borrowers), the LENDERS party thereto from time to time, and DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent (in such capacity, the Administrative Agent) for the Lenders."
"WHEREAS, pursuant to Section 2.23(a) of the Credit Agreement, the Existing Borrowers have provided written notice to the Administrative Agent (the Term Loan Replacement Notice) requesting to establish a new Classof Refinancing Term Loans in an aggregate principal amount of $1,865,038,704.69, the proceeds of which Refinancing Term Loans shall refinance in full the Initial Term B Loans and the Incremental Term B-1 Loans outstanding immediately prior to the Effective Time (as defined below);"
" | (f) | the share pledge agreement, dated September24, 2015, made between Mallinckrodt International Finance S.A., as pledgor, the Collateral Agent and Mallinckrodt International Holdings S. r.l., as company, over 100% of the Equity Interests of Mallinckrodt International Holdings S. r.l., ---|---|--- Swiss Incremental Security Document shall mean a Swiss law security confirmation agreement, dated as of the Third Amendment Effective Date, between Swiss Holdco, as pledgor 1 and assignor 1, Swiss Finco, as assignor 2, the Lux Borrower, as pledgor 2 and the Collateral Agent, as collateral agent, assignee and pledgee and on behalf of the other Secured Parties, as pledgees."
Effective Time and all Revolving Facility Credit Exposure thereunder and (b)the 2017 Replacement Revolving Facility Commitments will constitute a separate Classof Other Revolving Facility Commitments and shall have terms as set forth in the Amended Credit Agreement; provided that the amendment set forth herein adding the Additional Borrowers as Borrowers (as defined in the Amended Credit Agreement) in respect of the 2017 Revolving Facility Commitments shall not be effective until immediately after the effectiveness of the 2017 Replacement Revolving Facility Commitments.
"Subject to the occurrence of the Third Amendment Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~ ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Annex A hereto."
"1\. a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (A)certified (to the extent available in any non-U.S. jurisdiction) as of a recent date by the Secretary of State (or other similar official or Governmental Authority in the case of any Loan Party organized outside the United States of America) of the jurisdiction of its organization, or (B)otherwise certified by the Secretary or Assistant Secretary or Director or similar officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party;"
"Section6.1. Continuing Effect; No Other Amendments or Waivers. This Amendment shall not constitute an amendment or waiver of or consent to any provision of the Credit Agreement and the other Loan Documents except as expressly stated herein and shall not be construed as an amendment, waiver or consent to any action on the part of the Loan Parties that would require an amendment, waiver or consent of the Administrative Agent or the Lenders except as expressly stated herein. Except as expressly waived hereby, the provisions of the Credit Agreement and the other Loan Documents are and shall remain in full force and effect in accordance with their terms. This Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement and the other Loan Documents."
MALLINCKRODT UK FINANCE LLP | By: |  | /s/ Frank Scholz Name: |  | Frank Scholz Title: |  | Director MALLINCKRODT HOLDINGS GMBH | By: |  | /s/ Alan Catterson Name: |  | Alan Catterson Title: |  | Director MALLINCKRODT FINANCE GMBH | By: |  | /s/ Alan Catterson Name: |  | Alan Catterson Title: |  | Director 
"Adjusted LIBO Rate shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum equal to the greater of (x)(a) the LIBO Rate in effect for such Interest Period divided by (b)one minus the Statutory Reserves applicable to such Eurocurrency Borrowing, if any, and (y)in the case of Eurocurrency Borrowings composed of ~~Initial~~ 2017 Term B Loans, 0.75% ~~or, in the case of Eurocurrency Borrowings comprised of~~ ~~Incremental Term B-1 Loans, 0.75%~~."
"Alternate Currency Equivalent shall mean, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternate Currency as determined by the Administrative Agent or the Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternate Currency with Dollars."
"Assignment and Acceptance shall mean an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Lux Borrower (if required by Section9.04), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent and reasonably satisfactory to the Lux Borrower."
"Availability Period shall mean, with respect to any Classof Revolving Facility Commitments, the period from and including the Closing Date (or, if later, the effective date for such Classof Revolving Facility Commitments (and for the avoidance of doubt, the effective date for the ~~2015~~ 2017 Revolving Facility Commitments shall be the ~~2015 Revolving~~ ~~Facility~~ Third Amendment Effective Date)) to but excluding the earlier of the Revolving Facility Maturity Date for such Classand, in the case of each of the Revolving Facility Loans, Revolving Facility Borrowings, Swingline Loans, Swingline Borrowings and Letters of Credit, the date of termination of the Revolving Facility Commitments of such Class."
"Bankers Acceptance Loans shall mean (i) the creation of Bankers Acceptances or (ii)the creation and purchase of completed Drafts and the exchange of such Drafts for B/A Equivalent Notes, in each case as a component of the Canadian Dollar Revolving Loans and as contemplated in Section 2.02(c) and Schedule 2.13(g) hereto."
"(f)the purchase price of equipment purchased during such period to the extent that the consideration therefor consists of any combination of (i)used or surplus equipment traded in at the time of such purchase, (ii)the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business or (iii)assets Disposed of pursuant to Section 6.05(m);"
"other than Excluded Securities, and (y)all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged or assigned for security purposes pursuant to the Security Documents and (ii)the Collateral Agent shall have received certificates, updated share registers (where necessary under the laws of any applicable jurisdiction in order to create a perfected security interest in such Equity Interests) or other instruments (if any) representing such Equity Interests (other than certificates or instruments issued by Cadence or subsidiaries of Cadence that are not received from Cadence on or prior to the Closing Date, with any such certificates or instruments to be delivered as promptly as practical (and in any event within 90 days, or such longer period as may be agreed by the Administrative Agent in its sole discretion, after the Closing Date)) and any notes or other instruments required to be delivered pursuant to the applicable Security Documents, together with stock powers, note powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;"
"Disqualified Stock shall mean, with respect to any person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a)matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (b)is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled, mandatory payments of dividends in cash, or (d)is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in the case of each of the foregoing clauses (a), (b), (c) and (d), prior to the date that is ninety-one (91)days after the Latest Maturity Date in effect at the time of issuance thereof and except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Loan Obligations that are accrued and payable and the termination of the Commitments (provided, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock). Notwithstanding the foregoing: (i)any Equity Interests issued to any employee or to any plan for the benefit of employees of the Parent or the Subsidiaries or by any such plan to such employees shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Parent in order to satisfy applicable statutory or regulatory"
"ERISA Affiliate shall mean any trade or business (whether or not incorporated) that, together with the Parent, a Borrower or a Subsidiary, is treated as a single employer under Section 414(b) or (c)of the Code, or, solely for purposes of Section302 of ERISA and Section412 of the Code, is treated as a single employer under Section414 of the Code."
"(h) permitted dividends or distributions or repurchases of its Equity Interests paid in cash by the Parent to its shareholders during such Applicable Period and permitted dividends paid by any Subsidiary to any person other than the Parent or any of the Subsidiaries during such Applicable Period, in each case in accordance with Section 6.06(b) (except to the extent such payment is made with amounts described in clauses (x)and (y) of the parenthetical contained in the proviso thereto), (f) and/or (h) (other than Restricted Payments made with Equity Interests (other than Disqualified Stock) of the Parent or with proceeds of Indebtedness or using any component of the Available Amount);"
"(j) to the extent not deducted in the computation of Net Proceeds in respect of any asset disposition or condemnation giving rise thereto, the amount of any prepayment of Indebtedness (other than Indebtedness created hereunder or under any other Loan Document ~~or Indebtedness that is secured by Other First Liens~~ ), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith to the extent that the income or gain realized from the transaction giving rise to such Net Proceeds exceeds the aggregate amount of all such prepayments and Capital Expenditures made with such Net Proceeds; and"
"agreement or replacement or renewal thereof is in effect, or (C)a pledge thereof to secure the Obligations would give any other party (other than a Loan Party or a Wholly Owned Subsidiary) to any organizational documents, joint venture agreement or shareholder agreement governing such Equity Interests (or other contractual obligation referred to in subclause (A)(ii) above) the right to terminate its obligations thereunder, but only to the extent, and for so long as, such right of termination is not terminated or rendered unenforceable or otherwise deemed ineffective by the Uniform Commercial Code or any other Requirement of Law;"
"Excluded Swap Obligation shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantors failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and the Lux Borrower. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal."
"Face Amount shall mean, in respect of a Draft, Bankers Acceptance or B/A Equivalent Note, as the case may be, the amount payable to the holder thereof on its maturity. The Face Amount of any Bankers Acceptance Loan shall be equal to the aggregate Face Amounts of the underlying Bankers Acceptances, B/A Equivalent Notes or Drafts, as the case may be."
"Fair Market Value shall mean, with respect to any asset or property, the price that could be negotiated in an arms-length transaction between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the Lux Borrower)."
"Hedging Agreement shall mean any agreement with respect to any swap, forward, future or derivative transaction, or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction, repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether or not exchange traded; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Parent, the Lux Borrower or any of the Subsidiaries shall be a Hedging Agreement."
"Material Subsidiary shall mean any Subsidiary, other than any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Parent most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.02(h), 5.04(a) or 5.04(b), have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Parent and the Subsidiaries on a consolidated basis as of such date, and (b)taken together with all such Subsidiaries as of such date, did not have assets with a value in excess of 10% of Consolidated Total Assets or revenues representing in excess of 10% of total revenues of the Parent and the Subsidiaries on a consolidated basis as of such date."
"If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date on which the relevant calculation is being made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Parent to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with Applicable Accounting Principles. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period, except to the extent the outstandings thereunder are reasonably expected to increase as a result of any transactions described in clause (i)of the first paragraph of this definition of Pro Forma Basis which occurred during the respective period or thereafter and on or prior to the date of determination. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Parent may designate."
"substantially simultaneously with the issuance thereof; (b)the principal amount (or accreted value, if applicable) of such Refinancing Notes does not exceed the principal amount (or accreted value, if applicable) of the aggregate portion of the Loans so reduced and/or Commitments so replaced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses); (c) the final maturity date of such Refinancing Notes is on or after the Term Facility Maturity Date or the Revolving Facility Maturity Date, as applicable, of the Term Loans so reduced or the Revolving Facility Commitments so replaced; (d)the Weighted Average Life to Maturity of such Refinancing Notes is greater than or equal to the Weighted Average Life to Maturity of the Term Loans so reduced or the Revolving Facility Commitments so replaced; (e) the terms of such Refinancing Notes do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Term Facility Maturity Date of the Term Loans so reduced or the Revolving Facility Maturity Date of the Revolving Facility Commitments so replaced, as applicable (other than (x)in the case of notes, customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default and (y)in the case of loans, customary amortization and mandatory and voluntary prepayment provisions which are consistent in all material respects, when taken as a whole, with those applicable to the ~~Initial~~ 2017 Term B Loans and/or Revolving Facility Commitments, as the case may be, with such Indebtedness (if in the form of term loans) to provide that any such mandatory prepayments as a result of asset sales, events of loss, or excess cash flow, shall be shared no more than ratably with the term loans outstanding pursuant to this Agreement); (f) there shall be no borrower or issuer with respect thereto other than the Lux Borrower ~~and Co-Borrower,~~, any other Borrower or any other Loan Party that is a Domestic Subsidiary, and no guarantor in respect of such Refinancing Notes that is the Parent, any Subsidiary, any Unrestricted Subsidiary or any Affiliate of the foregoing that is not a Loan Party; (g)if such Refinancing Notes are secured by an asset of the Parent, any Subsidiary, any Unrestricted Subsidiary or any Affiliate of the foregoing, the security agreements relating to such assets shall not extend to any assets not constituting Collateral and shall be no more favorable to the secured party or party, taken as a whole (determined by the Lux Borrower in good faith) than the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent); (h) if such Refinancing Notes are secured, such Refinancing Notes shall be secured by all or a portion of the Collateral, but shall not be secured by any assets of the Parent or its subsidiaries other than the Collateral; and (i)Refinancing Notes that are secured by Collateral shall be subject to the provisions of a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable (and in any event shall be subject to a Permitted Junior Intercreditor Agreement if the Indebtedness being Refinanced is secured on a junior lien basis to any of the Obligations)."
"Required Percentage shall mean, with respect to an Applicable Period, 50%; provided, that, so long as no Default or Event of Default shall have occurred and is continuing, if the Total Net Leverage Ratio as at the end of the Applicable Period is (x)less than or equal to 4.50 to 1.00, such percentage shall be 25% or (y) 3.50 to 1.00, such percentage shall be 0% and."
"Standard Securitization Undertakings shall mean representations, warranties, covenants and indemnities entered into by the Parent or any Subsidiary thereof in connection with a Qualified Receivables Facility which are reasonably customary (as determined in good faith by the Lux Borrower) in an accounts receivable financing transaction in the commercial paper, term securitization or structured lending market."
"Statutory Reserves shall mean the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage."
"Test Period shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Parent then most recently ended (taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to Section 5.04(a) or 5.04(b); provided that prior to the first date financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), the Test Period in effect shall be the four fiscal quarter period ending December27, 2013."
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
"(b) each Lender agrees, severally and not jointly, to make Revolving Facility Loans of a Classin an Agreed Currency to the Lux Borrower or any Additional Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i)the Dollar Equivalent of such Lenders Revolving Facility Credit Exposure of such Classexceeding such Lenders Revolving Facility Commitment of such Class, or (ii)the Dollar Equivalent of the Revolving Facility Credit Exposure of such Classexceeding the total Revolving Facility Commitments of such Class. Within the foregoing limits and subject to the terms and conditions set forth herein, the Lux Borrower and the Additional Borrowers may borrow, prepay and reborrow Revolving Facility Loans, and"
"(c) Each Canadian Dollar Revolving Loan shall, at the option of the ~~Lux~~ applicable Borrower, be incurred and maintained as, and/or converted into one or more Borrowings of Canadian Prime Rate Loans or (A)in the case of a B/A Lender, the creation of Bankers Acceptances on the terms and conditions provided for herein and in Schedule 2.13(g) hereto or (B)in a case of a Non-B/A Lender, the creation and purchase of completed Drafts in Canadian Dollars and the exchange of such Drafts for B/A Equivalent Notes, in each case on the terms and conditions provided for herein and in Schedule 2.13(g) hereto."
"(d) At the commencement of each Interest Period for any Eurocurrency Revolving Facility Borrowing and each Borrowing of Bankers Acceptance Loans,such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum (or in the case of a Borrowing denominated in an Alternate Currency, the Alternate Currency Equivalent thereof). At the time that each ABR Revolving Facility Borrowing and each Borrowing of Canadian Prime Rate Loans is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple (or in the case of a Borrowing of Canadian Prime Rate Loans, the Alternate Currency Equivalent thereof) and not less than the Borrowing Minimum; provided, that an ABR Revolving Facility Borrowing may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or that is required to finance the reimbursement of an L/C"
"Section2.04 Swingline Loans. (a)Subject to the terms and conditions set forth herein, each Swingline Lender agrees to make Swingline Loans in Dollars to the ~~Borrowers~~ Lux Borrower or any Additional Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i)the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Commitment or (ii)the Dollar Equivalent of the Revolving Facility Credit Exposure of the applicable Classexceeding the total Revolving Facility Commitments of such Class; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Borrowing. Within the foregoing limits and subject to the terms and conditions set forth herein, the Lux Borrower and the Additional Borrowers may borrow, prepay and reborrow Swingline Loans."
"(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., Local Time, on any Business Day require the Revolving Facility Lenders of the applicable Classto acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans made by it. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Revolving Facility Lenders applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent for the account of the Swingline Lender, such Revolving Facility Lenders applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of any Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Facility Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section2.06 with respect to Loans made by such Revolving Facility Lender (and Section2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Lux Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from a Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof."
"(a) General. Subject to the terms and conditions set forth herein, the Lux Borrower or any Additional Borrower may request the issuance of one or more letters of credit denominated in any Agreed Currency in the form of (x)trade letters of credit in support of trade obligations of the Parent and its Subsidiaries incurred in the ordinary course of business (such letters of credit issued for such purposes, Trade Letters of Credit) and (y)standby letters of credit issued for any other lawful purposes of the Parent and its Subsidiaries (such letters of credit issued for such purposes, Standby Letters of Credit; each such letter of credit issued hereunder, a Letter of Credit and collectively, the Letters of Credit) for its own account (although, at the request of the Lux Borrower or any Additional Borrower, a Letter of Credit may be issued that states that it is issued for the account of the Parent or any of its Subsidiaries, in which case any such Letter of Credit shall be deemed issued for the joint and several account of the Lux Borrower or such Additional Borrower and, as applicable, the Parent or such Subsidiary) in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the applicable Availability Period and prior to the date that is five Business Days prior to the applicable Revolving Facility Maturity Date. Except with respect to additional conditions to the issuance, amendment, extension, renewal or increase in the amount of Letters of Credit as to which the Lux Borrower or any Additional Borrower and the applicable Issuing Bank may agree, in the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Lux Borrower or any Additional Borrower to, or entered into by ~~such~~ the Lux Borrower or any Additional Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control."
"replacement, (i)the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)references herein to the term Issuing Bank shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of Credit."
"(b) The Lux Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments of any Class; provided, that (i)each reduction of the Revolving Facility Commitments of any Classshall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments of such Class) and (ii)the Lux Borrower shall not terminate or reduce the Revolving Facility Commitments of any Classif, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with Section2.11 and any Cash Collateralization of Letters of Credit in accordance with Section 2.05(j) or (k), as applicable, the Dollar Equivalent of the Revolving Facility Credit Exposure of such Class (excluding any Cash Collateralized Letter of Credit, to the extent so Cash Collateralized) would exceed the total Revolving Facility Commitments of such Class."
"(c) The Lux Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments of any Classunder paragraph (b)of this Section2.08 at least three Business Days prior to the effective date of such termination or reduction (or such shorter period acceptable to the Administrative Agent), specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Lux Borrower pursuant to this Section2.08 shall be irrevocable; provided, that a notice of termination or reduction of the Revolving Facility Commitments of any Classdelivered by the Lux Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such notice may be revoked by the Lux Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments each applicable shall be permanent. Each reduction of the Commitments of any Classshall be made ratably among the Lenders in accordance with their respective Commitments of such Class."
"(e) All Fees shall be paid on the dates due, in Dollars and immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the Fees shall be refundable under any circumstances."
"making of any Credit Event in any Alternate Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the Original Currency) no longer exists or the respective Borrower is not able to make payment to the Administrative Agent for the account of the applicable Lenders in such Original Currency, then all payments to be made by the respective Borrower hereunder in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Equivalent (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the respective Borrower takes all risks of the imposition of any such currency control or exchange regulations."
"Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section2.21 and any such collateral and other documentation shall be deemed Loan Documents hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers consent (not to be unreasonably withheld) and furnished to the other parties hereto."
applicable covenant levels were then in effect); and (iv)the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
"Section2.22 Extensions of Loans and Commitments. (a)Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section2.22), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of any Classof Term Loans and/or Revolving Facility Commitments, in each case having a like Term Facility Maturity Date or Revolving Facility Maturity Date (as applicable) on a pro rata basis (based, in the case of an offer to the Lenders under any Classof Term Loans, on the aggregate outstanding Term Loans of such Classand, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms to each such Lender (Pro Rata Extension Offers), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lenders Loans and/or Commitments of such Classand to otherwise modify the terms of such Lenders Loans and/or Commitments of such Classpursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lenders Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lenders Loans). For the avoidance of doubt, the reference to on the same terms in the preceding sentence shall mean, (i)in the case of an offer to the Lenders under any Classof Term Loans, that all of the Term Loans of such Classare offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii)in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an Extension) agreed to between the Borrowers and any such Lender (an Extending Lender) will be established under this Agreement by implementing an Other Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an Extended Term Loan) or an Other Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an Extended Revolving Facility Commitment, and any Revolving Facility Loan made pursuant to such Extended Revolving Facility Commitment, an Extended Revolving Loan). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term"
"(d)The Borrowers may approach any Lender or any other person that would be a permitted Assignee of a Revolving Facility Commitment pursuant to Section9.04 to provide all or a portion of the Replacement Revolving Facility Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Classof Revolving Facility Commitments for all purposes of this Agreement; provided that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Classof Revolving Facility Commitments."
"(b)As of the Closing Date, after giving effect to the Transactions, there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors (or entities controlled by directors) and shares held by directors (or entities controlled by directors)) relating to any Equity Interests of the Parent or any of the Subsidiaries, except as set forth on Schedule 3.08(b)."
"(b) The Projections and other forward looking information prepared by or on behalf of the Parent, any Borrower or any of their representatives and that have been made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby have been prepared in good faith based upon assumptions believed by the Parent or the applicable Borrower to be reasonable as of the date thereof (it being understood that such Projections and other forward looking information are as to future events and are not to be viewed as facts, such Projections and other forward looking information are subject to significant uncertainties and contingencies and that actual results during the period or periods covered by any such Projections or other forward looking information may differ materially from the projected results, and that no assurance can be given that the projected results will be realized), as of the date such Projections and information were furnished to the Lenders."
"Section3.16 Environmental Matters. Except as to matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a) no written notice, request for information, order, complaint or penalty has been received by ~~the~~ any Borrower or any of ~~its~~ their respective Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or, to ~~the~~ any Borrowers knowledge, threatened which allege a violation of or liability under any Environmental Laws, in each case relating to ~~the~~ any Borrower or any of ~~its~~ their respective Subsidiaries, (b)each of the ~~Borrower and its~~ Borrowers and their respective Subsidiaries has all environmental permits, licenses, authorizations and other approvals necessary for its operations to comply with all Environmental Laws (Environmental Permits) and is, and in the prior eighteen (18)month"
"Section3.21Intellectual Property; Licenses, Etc. Except as would not reasonably be expected to have a Material Adverse Effect or as set forth in Schedule 3.21, (a) the ~~Borrower~~ Borrowers and each of ~~its~~ their respective Subsidiaries ~~owns~~ own, or ~~possesses~~ possess the right to use, all Intellectual Property that is used or held for use in their respective businesses as presently conducted, (b)to the knowledge of the Parent and the Borrowers, the Parent and its Subsidiaries are not interfering with, infringing upon, misappropriating or otherwise violating Intellectual Property of any person, and (c)(i) no claim or litigation regarding any of the Intellectual Property owned by the Parent and its Subsidiaries is pending or, to the knowledge of the Parent or ~~either~~ any Borrower, threatened and (ii)to the knowledge of the Parent and the Borrowers, no claim or litigation regarding any other Intellectual Property described in the foregoing clauses (a)and (b) is pending or threatened."
"(i)a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1)certified (to the extent available in any non-U.S. jurisdiction) as of a recent date by the Secretary of State (or other similar official or Governmental Authority in the case of any Loan Party organized outside the United States of America) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary or Director or similar officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,"
"Notwithstanding anything to the contrary, it is understood that to the extent any Collateral may not be perfected by (A)the filing of a Uniform Commercial Code financing statement, (B)taking delivery and possession of a stock certificate of each Borrower and any Guarantor organized or incorporated in Luxembourg, Switzerland or the United States or any State thereof, the Equity Interests of which are certificated and are required to be pledged pursuant this Agreement (to the extent, with respect to Cadence, such stock certificates are received from Cadence on or prior to the Closing Date) or (C)the filing of a short-form security agreement with the United States Patent and Trademark Office or the United States Copyright"
"Section5.02 Insurance. (a)Maintain, with financially sound and reputable insurance companies, insurance (subject to customary deductibles and retentions) in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar businesses operating in the same or similar locations, cause the Collateral Agent to be listed as a co-loss payee on property and casualty policies with respect to tangible personal property and assets constituting Collateral located in the United States of America and as an additional insured on all general liability policies. Notwithstanding the foregoing, the Parent and the Subsidiaries may self-insure with respect to such risks with respect to which companies of established reputation engaged in the same general line of business in the same general area usually self-insure."
"(ii)the designation of any form, type or amount of insurance coverage by the Collateral Agent (including acting in the capacity as the Collateral Agent) under this Section5.02 shall in no event be deemed a representation, warranty or advice by the Collateral Agent or the Lenders that such insurance is adequate for the purposes of the business of the Parent, the Borrowers and the Subsidiaries or the protection of their properties; and"
"(b)within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary managements discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Parent on behalf of the Parent as fairly presenting, in all material respects, the financial position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with Applicable Accounting Principles (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Parent of quarterly reports on Form 10-Q of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);"
"(b)the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Parent, a Borrower or any of the Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;"
"(b)If any asset is acquired by the Parent, any Borrower or any Subsidiary Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x)assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof, (y)assets constituting Excluded Property and (z)assets of any Subsidiary Loan Party organized outside the United States, Luxembourg or Switzerland (other than (i)Investment Property (including, without limitation, Equity Interests, promissory notes or other instruments evidencing Indebtedness) and proceeds thereof and (ii)Collateral and proceeds of Collateral received by it from other Guarantors) for so long as, and to the extent, excluded by reason of the penultimate paragraph of the definition of Collateral and Guarantee Requirement), the Parent, such Borrower or such Subsidiary Loan Party, as applicable, will (i)notify the Collateral Agent of such acquisition or ownership and (ii)subject (where applicable) to the Agreed Guarantee and Security Principles, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent to satisfy the Collateral and Guarantee"
"(g)deposits and other Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capitalized Lease Obligations), statutory obligations, surety and appeal bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;"
"(as if incurred at such later time), such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this Section6.02 and will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or any portion thereof) in one of the above clauses and such Lien securing such item of Indebtedness (or portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or portion thereof) when calculating the amount of Liens or Indebtedness that may be incurred pursuant to any other clause. For purposes of this Section6.02, Indebtedness will not be considered incurred under a subsection or clause of Section6.01 if it is later reclassified as outstanding under another subsection or clause of Section6.01 (in which event, and at which time, same will be deemed incurred under the subsection or clause to which reclassified). In addition, with respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. Notwithstanding the foregoing, it is acknowledged and agreed that Liens on Collateral that are Junior Liens or Other First Liens shall at all times be justified under clause (b), (i) (in the case of Junior Liens), (ff) or (gg) above, as applicable."
"(l)Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Parent or a Subsidiary as a result of a foreclosure by the Parent or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;"
"(a)(i) the purchase and Disposition of inventory in the ordinary course of business by the Parent or any Subsidiary, (ii)the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by the Lux Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Parent or any Subsidiary or (iv)the Disposition of Permitted Investments in the ordinary course of business;"
"(b)Restricted Payments may be made by the Parent to purchase or redeem the Equity Interests of the Parent (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of the Parent or any of the Subsidiaries or by any Plan or any shareholders agreement then in effect upon such persons death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (b) shall not exceed in any fiscal year $15,000,000 (plus (x)the amount of net proceeds contributed to the Parent that were received by the Parent during such calendar year from sales of Equity Interests of the Parent to directors, consultants, officers or employees of the Parent or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Available Amount and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, which, if not used in any year, may be carried forward to any subsequent calendar year); and provided, further, that cancellation of Indebtedness owing to the Parent or any Subsidiary from members of management of the Parent or its Subsidiaries in connection with a repurchase of Equity Interests of the Parent will not be deemed to constitute a Restricted Payment for purposes of this Section6.06;"
"(vi)(A) any employment agreements entered into by the Parent or any of the Subsidiaries in the ordinary course of business, (B)any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with employees, officers or directors, and (C)any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions pursuant thereto,"
"(d)default shall be made in the due observance or performance by ~~the~~ any Borrower of any covenant, condition or agreement contained in, Section 5.01(a) (solely with respect to the Parent, the Borrowers and the Cadence IP Licensee), 5.05(a), 5.08 or 5.13 or in Article VI; provided, that the failure to observe or perform the Financial Covenant shall not in and of itself constitute an Event of Default with respect to any Term Facility unless the Revolving Facility Lenders have accelerated any Revolving Facility Loans then outstanding as a result of such breach and such declaration has not been rescinded on or before the date on which the Term Lenders declare an Event of Default in connection therewith;"
"(b)Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided, that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or any Borrower may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by them, provided that approval of such procedures may be limited to particular notices or communications."
"(A)the Lux Borrower (such consent not to be unreasonably withheld, delayed or conditioned), which consent, with respect to the assignment of a Term Loan, will be deemed to have been given if the Lux Borrower has not responded within ten (10)Business Days after the delivery of any request for such consent; provided, that no consent of the Lux Borrower shall be required (x)for an assignment of a Term Loan to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below), or for an assignment of a Revolving Facility Commitment or Revolving Facility Loan to a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or Approved Fund with respect to a Revolving Facility Lender or (y)if an Event of Default under Section 7.01(b), (c), (h) or (i)has occurred and is continuing, for an assignment to any person;"
"(d)Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank and in the case of any Lender that is an Approved Fund, any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender, including to any trustee for, or any other representative of, such holders, and this Section9.04 shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto."
"Section9.06Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at any time held and other obligations at any time owing by such Lender or such Issuing Bank to or for the credit or the account of Parent, the Borrowers or any Subsidiary against any of and all the obligations of Parent or any Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured; provided, that any recovery by any Lender or any Affiliate pursuant to its setoff rights under this Section9.06 is subject to the provisions of Section 2.18(c); provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y)the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and each Issuing Bank under this Section9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank may have."
"(b)Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x)as provided in Section2.21, 2.22 or 2.23, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Parent, each Borrower and the Required Lenders (except that any waiver, amendment or modification of Section6.12 or of any defined term (or component defined term) but only to the extent as used therein (or any Default or Event of Default or exercise of remedies by the Required Revolving Facility Lenders in respect or as a result thereof) or of the definition of Required Revolving Facility Lenders shall require the Required Revolving Facility Lenders voting as a single Class, rather than the Required Lenders) and (z)in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and the Administrative Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:"
"Section9.18Release of Liens and Guarantees. (a)The Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably agree that the Liens granted to the Collateral Agent by the Loan Parties on any Collateral shall (1)be automatically released: (i)in full upon the occurrence of the Termination Date as set forth in Section 9.18(d) below; (ii)upon the Disposition (other than any lease or license) of such Collateral by any Loan Party to a person that is not (and is not required to become) a Loan Party in a transaction permitted under this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (iii) to the extent that such Collateral comprises property leased to a Loan Party, upon termination or expiration of such lease (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with Section9.08), (v) to the extent that the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee in accordance with the Subsidiary Guarantee Agreement (or, in the case of the Parent, this Agreement (unless the Parent is to become a Subsidiary Loan Party as provided in Section10.08)) or clause (b)below (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (vi) as required by the Collateral Agent to effect any Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents or (vii)in the case of Permitted Receivables Facility Assets, upon the Disposition thereof by any Loan Party to a Receivables Entity of such Permitted Receivables Facility Assets pursuant to a Qualified Receivables Facility and (2)be released in the circumstances, and subject to the terms and conditions, provided in Section8.11 (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without any further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any Disposition, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents."
"regardless of which Borrower actually receives the relevant Loans, Letters of Credit or other extensions of credit hereunder or the amount of such Loans, Letters of Credit or other extensions of credit received or the manner in which the Administrative Agent or any relevant Lender or Issuing Bank accounts for such Loans, Letters of Credit or other extensions of credit on its books and records. The Loan Obligations of the Borrowers with respect to Loans, Letters of Credit and other extensions of credit made to one of them, and the Loan Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Loans, Letters of Credit and other extensions of credit made to any other Borrower hereunder, shall be separate and distinct obligations, but all such other Loan Obligations shall (subject to clause (f)below) be primary obligations of each Borrower."
"(c) The obligations of each Borrower under this Section9.23 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any of the Lenders, Issuing Banks or other Secured Parties."
(e)the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
"Each relevant Non-U.S. Loan Party shall not be required to notify the counterparties to any contracts that have been charged/assigned under a Security Document that such contract has been so charged/assigned unless required by the Administrative Agent if an Event of Default has occurred and is continuing. Liens should not be created over contracts, leases or licenses which prohibit assignment or the creation of such liens or which require the consent of third parties for the creation of such liens or such assignment. ---|--- "
"1.Each Revolving Facility Lender severally agrees, on the terms and conditions of the Credit Agreement to which this Schedule 2.13(g) is attached, and this Schedule 2.13(g), (i) in the case of a B/A Lender, to create Bankers Acceptances by accepting Drafts and to purchase such Bankers Acceptances in accordance with Section6 of this Schedule 2.13(g) and the Credit Agreement and (ii)in the case of a Non-B/A Lender, to purchase completed Drafts (which have not and will not be accepted by such Lender or any other Revolving Facility Lender) in accordance with Section6 of this Schedule 2.13(g) and the Credit Agreement. "
"6.Not later than 2:00 p.m. (Toronto time) on an applicable Drawing Date, each Revolving Facility Lender shall complete one or more Drafts in accordance with the Borrowing Request or Interest Election Request (as applicable) and either (x)accept the Drafts and purchase the Bankers Acceptances so created for the B/A Discount Proceeds, or (y)purchase the Drafts for the B/A Discount Proceeds. In each case, upon receipt of the B/A Discount Proceeds and upon fulfillment of the conditions set forth in Sections 4.01 and 4.02 of the Credit Agreement, as applicable, the Administrative Agent, at the direction of the ~~Lux~~ applicable Borrower, shall apply the B/A Discount Proceeds as follows: (i)remit to the ~~Lux~~ applicable Borrower (in the case of the making of a Canadian Dollar Revolving Loan), (ii) prepay Canadian Prime Rate Loans (which shall constitute a conversion of the Canadian Dollar Revolving Loans from Canadian Prime Rate Loans to Bankers Acceptance Loans) or (iii)pay Bankers Acceptances maturing on such date (which shall constitute a continuation of Bankers Acceptance Loans to new Bankers Acceptance Loans), provided that in the case of any such conversion or continuation of Loans, the ~~Lux Borrower~~ Borrowers shall pay to the Administrative Agent for account of the Revolving Facility Lenders such additional amounts, if any, as shall be necessary to effect the prepayment in full of the respective Canadian Prime Rate Loans being prepaid, or the Bankers Acceptances maturing, on such date. "
"As used in this definition, Material Acquisition means any acquisition of property or series of related acquisitions of property that (a) constitutes all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Person and (b) involves Consideration in excess of $5,000,000; and Material Disposition means (i) the Balcke Drr Disposition, and (ii) any other Disposition of property or series of related Dispositions of property that (A) involves all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Restricted Subsidiary and (B) yields gross proceeds to the Parent Borrower or any of its Restricted Subsidiaries in excess of $5,000,000."
"Specified Cash Management Agreement: (a) any agreement providing for treasury, depositary or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services, or any similar transactions, between the Parent Borrower or any Subsidiary Guarantor and any Lender or Affiliate thereof, existing on the Effective Date and (b) any agreement providing for treasury, depositary or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services, or any similar transactions, between the Parent Borrower or any Subsidiary Guarantor and any Lender or Affiliate thereof, in each case which has been designated by the Parent Borrower, by notice to the Administrative Agent not later than 90 days after the execution and delivery of such agreement by the Parent Borrower or such Subsidiary Guarantor, as a Specified Cash Management Agreement."
"EEA Financial Institution: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent."
"Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and (b) the effects of any Bail-in Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred"
"2 Section 2. Representations and Warranties, No Default. The Borrower hereby represents and warrants that immediately prior to and immediately after giving effect to this Amendment (i) no Default or Event of Default exists and (ii) all representations and warran- ties contained in the Credit Agreement or in any other Loan Document are true and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof (except that any representation or warranty which by its terms is made only as of a specified date was true and correct in all material respects only as of such specified date). Section 3. Effectiveness. This Amendment will become effective upon the date (the Amendment No. 1 Effective Date) on which: (i) Counterparts. The Administrative Agent shall have received executed signature pages hereto from each Loan Party party to the Credit Agreement and, solely for purposes of Section 8 of this Amendment, each other Loan Party, each Amendment No. 1 Consenting Lender and the Additional Term B Lender; (ii) Opinions of Counsel. The Administrative Agent shall have received, in form reasonably satisfactory the Administrative Agent, a customary opinion letter from Ropes & Gray LLP, counsel to the Loan Parties. (iii) Organization Documents, Resolutions, Etc. The Administrative Agent shall have received the following: (1) either (i) copies of the Organization Documents of each Loan Party as of the Amendment No. 1 Effective Date, certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Amendment No. 1 Effective Date or (ii) a certificate of a Responsible Officer of the Borrower stating that there has been no change to the Organization Document of such Loan Party since the Closing Date; (2) a certificate of a Responsible Officer of each Loan Party (including for this purpose, any secretary or assistant secretary thereof) as of the Amendment No. 1 Effective Date, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other governing body (including any committee thereof) authorizing the execution, delivery and performance of this Amendment and any other related Loan Document to which it is a party and, in the case of the Borrower, the Bor- rowings contemplated hereby, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect and (B) identify by name and title and bear the signatures of each Responsible Officer or other authorized signatory of such Loan Party authorized to sign this Amendment and any other related Loan Document entered into by such Loan Party on the Amendment No. 1 Effective Date; and Exhibit 10.1"
"Execution Version Exhibit A Term Loan B CUSIP Number: 65339QAF4 CREDIT AGREEMENT Dated as of June 9, 2016 2016, as amended by Amendment No. 1, dated as of March 22, 2017 among NEON FINANCE COMPANY LLC (to be merged with and into NEXEO SOLUTIONS, LLC), as the Borrower, NEON HOLDING COMPANY LLC (to be merged with and into NEXEO SOLUTIONS HOLDINGS, LLC), as Holdings, NEXEO SOLUTIONS SUB HOLDING CORP., as Sub Holdco BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent, and THE OTHER LENDERS PARTY HERETO ________________ JEFFERIES FINANCE LLC, as Syndication Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agent, BANK OF AMERICA, N.A., JEFFERIES FINANCE LLC, and DEUTSCHE BANK SECURITIES INC., as Joint Lead Arrangers and Joint Bookrunners Exhibit 10.1"
"ABL Facility means that certain senior secured asset-based revolving credit facility dated on or about the Closing Date by and among Holdings, Sub Holdco, the Borrower, the other borrowers party thereto, the lenders party thereto in their capacities as lenders thereunder and Bank of America, N.A., as agent, and the other agents party thereto, including any related notes, collateral documents, letters of credit and guarantees, instruments and agreements executed in connection therewith, and any appendices, exhibits or schedules to any of the foregoing (as the same may be in effect from time to time), and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof (whether with the original agents and lenders or other agents or lenders or otherwise, and whether provided under the original credit agreement or other credit agreements or otherwise) and any indenture, guarantees, credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund, exchange or refinance any part of the loans, notes, guarantees, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under clause (1) of the definition of Permitted Indebtedness). ABL Facility Documentation means the ABL Facility and all security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith. ABL First Lien Collateral means all the ABL First Lien Collateral as defined in the ABL Intercreditor Agreement. ABL Intercreditor Agreement means the intercreditor agreement to be dated as of the Closing Date among the Administrative Agent, the Collateral Agent, the ABL Administrative Agent and the Loan Parties, substantially in the form attached as Exhibit H-1 or any other intercreditor agreement among the ABL Administrative Agent, one or more Senior Representatives of Permitted Additional Pari Debt, Permitted Junior Priority Debt, Other Junior Secured Debt, Credit Agreement Refinancing Indebtedness or any Refinancing Indebtedness in respect thereof, the Administrative Agent and the Collateral Agent on terms that are no less favorable in any material respect to the Secured Parties than those contained in the form attached as Exhibit H-1. Acceptable Discount has the meaning specified in Section 2.03(a)(iv)(D)(2). Acceptable Prepayment Amount has the meaning specified in Section 2.03(a)(iv)(D)(3). Acceptance and Prepayment Notice means a notice of the Borrowers acceptance of the Acceptable Discount in substantially the form of Exhibit O. Acceptance Date has the meaning specified in Section 2.03(a)(iv)(D)(2). Accounting Changes has the meaning specified in Section 1.03(d). Acquired EBITDA means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable. Acquired Entity or Business has the meaning specified in the definition of the term EBITDA. Acquisition means (i) the Merger and (ii) the merger of Merger Sub 2 with and into Blocker, with Blocker surviving such merger. Acquisition Agreement means the Agreement and Plan of Merger, dated as of March 21, 2016, among inter alios, Merger Sub 1, Merger Sub 2, the Company and Holdings. Additional Lender means, at any time, any bank, other financial institution or institutional investor that, in any case, is not an existing Lender and that agrees to provide any portion of any (a) Incremental Loan in accordance with Section 2.12 or (b) Other Loans pursuant to a Refinancing Amendment in accordance with Section \- 2- Exhibit 10.1"
"All-In Yield means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, a Eurodollar Rate or Base Rate floor greater than any floor then applicable to the Loans of the applicable Class (but, with respect to any such floor, only to the extent an increase in the interest rate floor in such Loans would cause an increase in the interest rate then in effect thereunder), respectively (with such increased amount being equated to interest margins for purposes of determining any increase to the Applicable Rate), or otherwise; provided that OID and upfront fees shall be equated to an interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and provided, further, that All-In Yield shall not include arrangement fees, commitment fees, structuring fees or underwriting or similar fees not generally paid to lenders in connection with such Indebtedness. Amendment No. 1 means Amendment No. 1 to this Agreement, dated as of March 22, 2017, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto. Amendment No. 1 Consenting Lender means each Lender that at or prior to the Amendment No. 1 Effective Date provided the Administrative Agent with a counterpart to Amendment No. 1 executed by such Lender. Amendment No. 1 Effective Date has the meaning set forth in Amendment No. 1. Annual Financial Statements means the audited consolidated balance sheets of Holdings and its Restricted Subsidiaries as of the fiscal years ended September 30, 2014 and September 30, 2015, and the related consolidated statements of operations, changes in stockholders equity and cash flows for Holdings and its Restricted Subsidiaries for the fiscal years ended September 30, 2014 and September 30, 2015. Applicable Discount has the meaning specified in Section 2.03(a)(iv)(C)(2). Applicable Rate means a percentage per annum equal to (a) for Eurodollar Rate Loans, 4.253.75% and (b) for Base Rate Loans, 3.252.75%. Appropriate Lender means, at any time, with respect to Loans of any Class, the Lenders of such Class. Approved Fund means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender. Arrangers means Bank of America, N.A., Jefferies Finance LLC, and Deutsche Bank Securities Inc. Assignee Group means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor. Assignment and Assumption means an Assignment and Assumption substantially in the form of Exhibit D or any other form approved by the Administrative Agent. Attorney Costs means all reasonable fees, expenses and disbursements of any law firm or other external legal counsel. Auction Agent means (a) the Administrative Agent or (b) any other financial institution or advisor engaged by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.03(a)(iv); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent. \- 4- Exhibit 10.1"
"Material Foreign Subsidiary means, at any date of determination, each of Holdings Foreign Subsidiaries (a) whose total assets at the date of the latest balance sheet date included in the most recent financial statements delivered pursuant to Section 6.01(a) or 6.01(b) were equal to or greater than 2.5% of Total Assets at such date or (b) whose gross revenues for the period of four fiscal quarters ending on such date were equal to or greater than 2.5% of the consolidated gross revenues of Holdings and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP (it being understood that, as of the Closing Date, Material Foreign Subsidiaries means each of Holdings Foreign Subsidiaries listed on Schedule 1.01C). Material Real Property means any real property owned by any Loan Party with a cost or book value in excess of $4,500,000. Material Subsidiary means any Material Domestic Subsidiary or any Material Foreign Subsidiary. Maturity Date means (i) with respect to the Initial Term B Loans, the date that is seven years after the Closing Date, (ii) with respect to any tranche of Extended Loans, the final maturity date as specified in the applicable Extension Offer accepted by the respective Lender or Lenders, (iii) with respect to any Other Loans, the final maturity date as specified in the applicable Refinancing Amendment and (iv) with respect to any Incremental Loans, the final maturity date as specified in the applicable Incremental Amendment; provided, in each case, that if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately preceding such day. Maximum Rate has the meaning specified in Section 10.10. Maximum Tender Condition has the meaning specified in Section 2.16(b). Merger has the meaning specified in the introductory paragraph of this Agreement. Merger Sub 1 has the meaning specified in the introductory paragraph to this Agreement. Merger Sub 2 means Neon Acquisition Company LLC, a Delaware limited liability company. Merger Sub 3 has the meaning specified in the introductory paragraph to this Agreement. Minimum Extension Condition has the meaning specified in Section 2.14(b). Minimum Tender Condition has the meaning specified in Section 2.16(b). Moodys means Moodys Investors Service, Inc. and any successor thereto. Mortgage Policies has the meaning specified in Section 6.13(b)(iv). Mortgaged Properties means each Material Real Property listed on Schedule 1.01B and after each other Material Real Property, if any, that is subject to a Mortgage delivered pursuant to Section 6.11 or Section 6.13. Mortgages means collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Lenders in form and substance reasonably satisfactory to the Collateral Agent. Multiemployer Plan means any multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any Loan Party or any of its respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions if a Loan Party would have liability thereto. \- 37- Exhibit 10.1"
"(1) any Investment (i) in any Loan Party, (ii) by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties and (iii) by Loan Parties in Restricted Subsidiaries that are not Loan Parties; provided that the aggregate amount of Investments (other than as a result of the transfer of Equity Interests or Indebtedness of Restricted Subsidiaries that are not Loan Parties to other Restricted Subsidiaries that are not Loan Parties) outstanding at any time pursuant to subclause (iii) shall not exceed the greater of (x) $115,000,000 and (y) 55.0% of EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period plus, in each case, up to $75,000,000 for working capital purposes; (2) any Investment in Cash Equivalents or Investment Grade Securities; (3) the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person or Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary (including as a result of a merger or consolidation); provided that with respect to each purchase or other acquisition made pursuant to this clause (3) (each, a Permitted Acquisition): the aggregate amount of Investments by Loan Parties for (i) the direct or indirect(A) acquisition of Persons that do not become Loan Parties or (ii) in the case of an asset acquisition, assets that are not acquired by a Loan Party, when taken together with the total consideration for all such acquired Persons and assets acquired after the Closing Date, shall not exceed at any time outstanding the sum of (x) the greater of $115,000,000 and 55.0% of EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period and (y) the Available Amount at such time; the acquired property, assets, business or Person is in a business permitted under(B) Section 7.07; subject, in the case of a Limited Condition Acquisition, to Section 1.08,(C) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing; and the Borrower shall have delivered to the Administrative Agent, on behalf of the(D) Lenders, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (3) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; (4) any Investment in securities or other assets not constituting Cash Equivalents or Investment Grade Securities and received in connection with a Disposition made pursuant to Section 7.05; (5) any Investment existing, or contemplated, on the Closing Date and set forth on Schedule 7.02 or made pursuant to binding commitments in effect on the Closing Date or an Investment consisting of any extension, modification or renewal of any such Investment existing on the Closing Date or binding commitment existing on the Closing Date; provided that the amount of any such Investment may be increased in such extension, modification or renewal only (a) as required by the terms of such Investment as in existence on the Closing Date or binding commitment as in existence on the Closing Date (including as a result of the accrual or accretion of interest or OID or the issuance of pay-in-kind securities) or (b) as otherwise permitted under this Agreement; (6) any Investment acquired by Holdings or any Restricted Subsidiary: (a) consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business; \- 45- Exhibit 10.1"
"(36) Liens securing obligations under (i) Indebtedness outstanding pursuant to clause (1) of the definition of Permitted Indebtedness so long as such Liens are subject to the terms of the ABL Intercreditor Agreement, (ii) Permitted Additional Pari Debt and Refinancing Indebtedness in respect thereof so long as such Liens are subject to the terms of the First Lien Intercreditor Agreement and the ABL Intercreditor Agreement, (iii) Permitted Junior Priority Debt and Refinancing Indebtedness in respect thereof so long as such Liens are subject to the terms of the Junior Lien Intercreditor Agreement and the ABL Intercreditor Agreement and (iv) to the extent applicable, any Credit Agreement Refinancing Indebtedness so long as such Liens are subject to the terms of the ABL Intercreditor Agreement and the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement, as applicable; (37) any interest or title of a lessor or sublessor under leases or subleases entered into by Holdings or any Restricted Subsidiary in the ordinary course of business; (38) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of Holdings or any Restricted Subsidiary; and (39) Liens created pursuant to the Loan Documents (including, without limitation, Liens securing the Loans) and the Obligations. For purposes of this definition, the term Indebtedness shall be deemed to include interest on such Indebtedness (including payment- in-kind interest) or the accretion or amortization of OID and, in each case, such amounts shall be deemed permitted so long as the Indebtedness is permitted to be secured. Permitted Non-Guarantor Ratio Debt any Indebtedness incurred by one or more Subsidiaries of Holdings other than the Loan Parties in the form of one or more series of notes or loans; provided that (i) after giving Pro Forma Effect to the incurrence of such Indebtedness and the application of proceeds thereof (but without giving effect to any increase in cash and Cash Equivalents from the proceeds thereof and assuming all such Indebtedness is fully drawn), the Consolidated Net Leverage Ratio as of the last day of the most recently ended Test Period would not exceed either (x) 4.6 to 1.0 or (y) only if such Indebtedness is incurred to consummate a Permitted Acquisition (or other Investment not prohibited hereunder), the Consolidated Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and the consummation of such Permitted Acquisition (or other Investment not prohibited hereunder), (ii) such Indebtedness does not mature prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (iii) such Indebtedness has a Weighted Average Life to Maturity that is 91 days after the Weighted Average Life to Maturity of this Facility, (iv) such Indebtedness does not have mandatory prepayment, redemption or offer to purchase events more onerous to Holdings and its Restricted Subsidiaries than those set forth in this Agreement, (v) the other terms and conditions of such Indebtedness (excluding pricing, rate floors, discounts, fees, premiums and optional prepayment and redemption terms) that in the good faith determination of the Borrower reflect market terms and conditions (taken as a whole) at the time of such incurrence or issuances, (vi) such Indebtedness, if secured, is secured only by assets of Subsidiaries that are not Loan Parties and (vii) the aggregate principal amount of such Indebtedness outstanding at any time and the aggregate principal amount of any such Indebtedness that is incurred or guaranteed by any Restricted Subsidiary of Holdings that is not a Loan Party pursuant to clause (25) of the definition of Permitted Indebtedness, when taken together with and the aggregate principal amount of Refinancing Indebtedness in respect thereof (including successive refinancings), does not at any time exceed $65,000,000. Permitted Unsecured Ratio Debt means any unsecured Indebtedness incurred by one or more of the Loan Parties in the form of one or more series of unsecured notes or unsecured loans; provided that (i) after giving Pro Forma Effect to the incurrence of such Indebtedness and the application of proceeds thereof (but without giving effect to any increase in cash and Cash Equivalents from the proceeds thereof and assuming all such Indebtedness is fully drawn), the Consolidated Net Leverage Ratio as of the last day of the most recently ended Test Period would not exceed either (x) 4.60 to 1.00 or (y) only if such Indebtedness is incurred to consummate a Permitted Acquisition (or other Investment not prohibited hereunder), the Consolidated Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and the consummation of such Permitted Acquisition (or other Investment not prohibited hereunder), (ii) such Indebtedness does not mature prior to the date that is 91 days after the Latest \- 52- Exhibit 10.1"
"connection with any Discounted Loan Prepayment provided for in this Section 2.03(a)(iv) as well as activities of the Auction Agent. (J) Each Borrower Party shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is revoked pursuant to the preceding clauses, any failure by such Borrower Party to make any prepayment to a Lender, as applicable, pursuant to this Section 2.03(a)(iv) shall not constitute a Default or Event of Default under Section 8.01 or otherwise). Mandatory.(b) Within five (5) Business Days after financial statements have been delivered pursuant to(i) Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, subject to clause (b)(v) of this Section 2.03, prepay an aggregate principal amount of Loans equal to (A) 50% (such percentage as it may be reduced as described below, the ECF Percentage) of Excess Cash Flow in excess of $1,000,000 for the fiscal year covered by such financial statements (commencing with the fiscal year ended September 30, 2017) (each such fiscal year period, an ECF Period) minus (B) the sum of all voluntary prepayments of or purchases of (x) Loans made pursuant to Sections 2.05(a)(i), 2.05(a)(iv) and 10.07(h) (in an amount, in the case of prepayments or purchases pursuant to Section 2.05(a)(iv) and 10.07(h), equal to the discounted amount actually paid in respect of the principal amount of such Loans and only to the extent that such Loans have been cancelled), (y) Permitted Additional Pari Debt and Credit Agreement Refinancing Indebtedness to the extent secured in whole or in part on a pari passu basis with the Loans under this Agreement (but without regard to the control of remedies) and (z) loans under the ABL Facility (including any Revolving Commitment Increase) and loans under any other revolving facility that is secured, in whole or in part, on a pari passu basis with the Loans under this Agreement (but without regard to the control of remedies) (in each case of this clause (iii) (and with respect to any revolving facility under clause (ii) above), to the extent accompanied by a permanent reduction in the corresponding commitments under the ABL Facility or other revolving commitments, as applicable), in the case of each of the immediately preceding clauses (x), (y) and (z), made during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 2.03(b)(i) for any prior fiscal year) or after the fiscal year-end but prior to the date a prepayment pursuant to this Section 2.03(b)(i) is required to be made in respect of such fiscal year (any such payment made after the fiscal year-end, an After Year-End Payment) and in each case to the extent such prepayments are not funded with the proceeds of Indebtedness (other than any Indebtedness under the ABL Facility or any other revolving credit facilities) or any Cure Amount (as defined in the ABL Facility Documentation); provided that (x) the ECF Percentage shall be 25% if the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period covered by such financial statements was less than 3.50 to 1.00 and greater than 3.00 to 1.00 and (y) the ECF Percentage shall be 0% if the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period covered by such financial statements was less than 3.00 to 1.00; provided, further, that (A) following the making of any After Year-End Payment, (i) the Secured Net Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if such payment were made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Secured Net Leverage Ratio and (ii) such After Year-End Payment shall not reduce the required amount of) any subsequent Excess Cash Flow prepayment, (B) if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge Other Applicable Indebtedness with Other Applicable ECF pursuant to the terms of the documentation governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such portion of Excess Cash Flow otherwise required to repay the Loans pursuant to this Section 2.03(b)(1) on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness requiring such Discharge at such time) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.03(b)(1) shall be reduced accordingly (provided that the portion of such \- 73- Exhibit 10.1"
"The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate(b) Lenders, on the Maturity Date of each Class of Loans, the aggregate principal amount of all Loans of such Class outstanding on such date. In the event any Incremental Loans or Extended Loans are made, such Incremental Loans or(c) Extended Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates set forth in the definitive documentation with respect thereto and on the applicable Maturity Date thereof. In connection with any Incremental Loans that constitute part of the same Class as Loans made on(d) the Closing Date, the Borrower and the Administrative Agent shall be permitted to adjust the rate of repayment in respect of such Class such that the Lenders holding Loans made on the Closing Date comprising part of such Class continue to receive a payment that is not less than the same Dollar amount that such Lenders would have received absent the incurrence of such Incremental Loans. On the Amendment No. 1 Effective Date, the Borrower shall repay to the Administrative Agent, (e) for the ratable account of each applicable Initial Term Lender, all Initial Term Loans held by such Initial Term Lender that are not Converted Initial Term Loans. Interest.SECTION 2.06. Subject to the provisions of Section 2.06(b), (i) each Eurodollar Rate Loan shall bear interest on(a) the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted Eurodollar Rate for such Interest Period plus the Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate. The Borrower shall pay interest on past due amounts hereunder at a fluctuating interest rate per(b) annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable(c) thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Fees. The Borrower shall pay to the Agents such fees as shall have been separatelySECTION 2.07. agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent). Computation of Interest and Fees. All computations of interest for Base Rate LoansSECTION 2.08. shall be made on the basis of a year of 365 days or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360 day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. Evidence of Indebtedness.SECTION 2.09. The Borrowings made by each Lender shall be evidenced by one or more accounts or records(a) maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case \- 77- Exhibit 10.1"
"portion of Holdings and/or Sub Holdcos obligations as co-borrower under any such Incremental Loans to the Borrower on the terms set forth therein; provided, however, that, effective upon any such transfer, the Guaranty of Holdings and Sub Holdco shall apply to any such transferred obligations. This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.(c) Refinancing Facilities. At any time after the Closing Date, the Borrower may obtainSECTION 2.13. from any Lender or any Additional Lender, Other Loans to refinance all or any portion of the applicable Class or Classes of Loans then outstanding under this Agreement which will be made pursuant to Other Term Commitments. Other Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsels form of opinion reasonably satisfactory to the Administrative Agent). Each Class of Other Term Commitments and Other Loans incurred under this Section 2.13 shall be in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Term Commitments and Other Loans incurred pursuant thereto (including any amendments necessary to treat the Other Loans and/or Other Term Commitments as Initial Term B Loans and Initial Term B Loan Commitments). Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.13. This Section 2.13 shall supersede any provisions in Section 2.11 or 10.01 to the contrary. No Lender shall be under any obligation to provide any Other Term Commitment unless such Lender executes a Refinancing Amendment. Extensions of Loans.SECTION 2.14. Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each,(a) an Extension Offer) made from time to time by the Borrower to all Lenders of Loans of any Class on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans of such Class) and on the same terms to each such Lender, the Borrower may from time to time with the consent of any Lender that shall have accepted such offer extend the maturity date of any Loans and otherwise modify the terms of such Loans of such Lender pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Loans and/or modifying the amortization schedule in respect of such Loans) (each, an Extension; any Extended Loans shall constitute a separate Class of Loans from the Class of Loans from which they were converted, it being understood that an Extension may be in the form of an increase in the amount of any other then outstanding Class of Loans otherwise satisfying the criteria set forth below), so long as the following terms are satisfied: (i) no Event of Default shall exist at the time the notice in respect of an Extension Offer is delivered to the Lenders, and no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Extended Loans, (ii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the relevant Extension Offer), the Loans of any Lender (an Extending Lender) extended pursuant to any Extension (Extended Loans) shall have the same terms as the Class of Loans subject to such Extension Offer (except for covenants or other provisions contained therein applicable only to periods after the then Latest Maturity Date), (iii) the final maturity date of any Extended Loans shall be no earlier than the final maturity date of the Class of Loans subject to such Extension Offer and the amortization schedule applicable to Loans pursuant to Section 2.05 for periods prior to such final maturity date of the Class of Loans subject to such Extension Offer may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Loans extended thereby, (v) any Extended Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Extension Offer, (vi) if the aggregate principal amount of Loans (calculated on the face amount thereof) in respect of \- 81- Exhibit 10.1"
"subclause (a) or (b) of such clause), (27), (28), (29), (31), (33), and (36) of the definition thereof, in each case to the extent required by the terms of the obligations secured by such Liens pursuant to documents reasonably acceptable to the Administrative Agent; and release any Guarantor from its obligations under the Guaranty if (i) in the case of any Subsidiary of(c) the Borrower, except in the case of Holdings, Sub Holdco or the Company, such Person (I) ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder or (II) at the option of Holdings by notice to the Agent, becomes an Excluded Subsidiary as a result of a transaction or designation permitted hereunder or (ii) in the case of Holdings or Sub Holdco, either Holdings or Sub Holdco ceases to be a Guarantor as a result of a transaction permitted hereunder; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of the ABL Facility, any Credit Agreement Refinancing Indebtedness or any other Junior Financing. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Collateral Agents authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the applicable Agent will (and each Lender irrevocably authorizes the applicable Agent to), at the Borrowers expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11. Appointment of Supplemental Administrative Agents.SECTION 9.12. It is the purpose of this Agreement and the other Loan Documents that there shall be no violation(a) of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a Supplemental Administrative Agent and collectively as Supplemental Administrative Agents). In the event that the Administrative Agent appoints a Supplemental Administrative Agent with(b) respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require. Should any instrument in writing from any Loan Party be required by any Supplemental(c) Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrower or Holdings, as applicable, shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall -127- Exhibit 10.1"
"(a)The parties hereto hereby agree that, for all purposes under the Credit Agreement and the other Loan Documents, (i) the First Amendment Incremental Term Commitments will constitute Commitments, Term Commitments and Incremental Term Commitments, (ii) the First Amendment Incremental Term Loans will constitute Loans, Term Loans and Incremental Term Loans, (iii) each First Amendment Incremental Term Lender will be a Lender, a Term Lender, an Incremental Term Lender and, if applicable, an Additional Lender and (iv) the First Amendment Incremental Term Loans and the Term Loans funded under the Credit Agreement on the Closing Date shall collectively constitute the one and the same Class of Term Loans."
"(i)The GLM Acquisition shall have been, or substantially concurrently with the funding of the First Amendment Incremental Term Loans hereunder shall be, consummated in accordance with the terms of the GLM Acquisition Agreement, without giving effect to any modifications, amendments or express waivers or consents thereto that are materially adverse to the First Amendment Incremental Term Lenders without the consent of the Lead Arrangers (as defined in the Commitment Letter, dated December 20, 2013 (the Commitment Letter), among Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding, Inc. (collectively, the Lead Arrangers), certain of their affiliates and the Borrower) (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) any decrease in the purchase price shall not be materially adverse to the First Amendment Incremental Term Lenders so long as the last sentence of Section 3.01(e)(ii) is satisfied and such reduction is allocated ratably to reduce the GLM Equity Contribution (as defined below) and the First Amendment Incremental Term Loans, and (b) any increase in the purchase price shall not be materially adverse to the First Amendment Incremental Term Lenders so long as such increase is funded by an increase in the GLM Equity Contribution)."
"(f)No Material Adverse Effect. Since September 30, 2013, there shall have been no event, change, discovery of information, development, effect, condition, result, circumstance, matter, occurrence or state of facts (each, an Event) that, individually or together with all other Events, has had, or would reasonably be expected to have, a GLM Material Adverse Effect. For the purposes of the foregoing sentence, GLM Material Adverse Effect shall mean any Event that is materially adverse to the business, financial condition or results of operations of the Blocker (as defined in the GLM Acquisition Agreement), GLM and its Subsidiaries, taken as a whole; provided, however, that no Event arising out of the following shall be deemed to constitute, or be taken into account in determining whether there has been a Material Adverse Effect: (A) financial, securities (including any disruption thereof and any decline in the price of any security or any market index) or credit markets (including changes in prevailing interest or exchange rates) or general economic, business or regulatory conditions in the United States or elsewhere in the world; (B) the industry in which GLM and its Subsidiaries operate; (C) national or international political or social conditions, including armed hostilities, national emergency or acts of war (whether or not declared), sabotage or terrorism, changes in government, military actions or force majeure events, or any escalation or worsening of any such acts or events; (D) hurricanes, floods, tornados, earthquakes or other natural disasters or acts of God; (E) changes in applicable Laws or GAAP (each as defined in the GLM Acquisition Agreement) or other accounting rules or the interpretations thereof; (F) any failure to meet any budgets, projections, forecasts or predictions of financial performance or estimates of revenue, earnings, cash flow or cash position, for any period (it being understood and agreed that the underlying facts and circumstances that caused such failure that are not otherwise excluded from the definition of a Material Adverse Effect may be taken into account in determining whether there has been a Material Adverse Effect); or (G) the negotiation, execution, announcement or performance of the GLM Acquisition Agreement or the consummation of the transactions contemplated by the GLM Acquisition Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, partners, employees (including any employee departures or labor union or labor organization activity), financing sources or Governmental Entities (as defined in the GLM Acquisition Agreement), and on revenue, profitability and cash flows, or any communication by Buyer or any of its Affiliates (as defined in the GLM Acquisition Agreement) of its plans or intentions (including in respect of employees) with respect to GLM or any of its Subsidiaries, or any change resulting or arising from the identity of, or any facts or circumstances relating to, Buyer or its Affiliates (as defined in the GLM Acquisition"
"Agreement), except, in the cases of clauses (A), (B), (C), (D), or (E), to the extent that such Events materially and disproportionately affect the business of GLM and its Subsidiaries relative to other businesses in the industry in which GLM and its Subsidiaries operate, but taking into account for purposes of determining whether a Material Adverse Effect has occurred only the material and disproportionate adverse impact. Subsidiaries as used in this paragraph shall have the meaning ascribed to such term in the GLM Acquisition Agreement."
"(j)Pledged Stock; Stock Powers; Pledged Notes. Subject to Section 3.02, the Administrative Agent shall have received (i) the certificates representing the shares of Capital Stock (to the extent certificated) pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and (ii) each promissory note (if any) required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof."
"Section 3.02Certain Funds Provision. Notwithstanding the foregoing, (A) to the extent any Collateral or any security interest therein (other than assets with respect to which a lien or security interest may be perfected by (x) intellectual property security filings with the United States Patent and Trademark Office or the United States Copyright Office, (y) the filing of a financing statement under the Uniform Commercial Code or (z) the delivery of stock certificates, together with undated stock powers executed in blank, with respect to GLM and its Restricted Subsidiaries; provided that stock certificates together with undated stock powers executed in blank of such Restricted Subsidiaries will only be delivered on the First Amendment Effective Date to the extent received after use by Holdings and its Subsidiaries of commercially reasonable efforts to do so) is not provided or perfected on the First Amendment Effective Date after use by Holdings and its subsidiaries of commercially reasonable efforts to do so or cannot be provided or perfected without undue burden or expense, the provision and/or perfection of such security interests in such Collateral shall not constitute a condition precedent to the availability of the First Amendment Incremental Term Loans on the First Amendment Effective Date, but shall be required to be provided and/or perfected within 90 days after the First Amendment Effective Date (and, in any event, in the case of the pledge of and perfection of security interests in Collateral not otherwise required on the First Amendment Effective Date, subject to extensions granted by the Administrative Agent in its reasonable discretion) and (B) without limitation of clause (A), with respect to guarantees and security to be provided by GLM and any of its Restricted Subsidiaries that is required to become a Guarantor under the Credit Agreement as amended by this Amendment, if such guarantees and security cannot be provided as a condition precedent solely because the directors or managers of such Restricted Subsidiaries have not authorized such guarantees and security and the election of new directors or managers to authorize such guarantees and security has not taken place prior to the funding of the First Amendment Incremental Term Loans, such election shall take place and such guarantees and security (including without limitation the documents and other items described in Sections3.01(a)(ii), 3.01(b), 3.01(c), 3.01(j) and 3.01(k)) shall be provided no later than 11:59 P.M., New York City time, on the First Amendment Effective Date."
"Lender|  | | Amount| |  | | Percentage|  ---|---|---|---|---|---|---|---|--- Bank of America, N.A.|  | $| 23,400,000| |  | | 26.0| % Goldman Sachs Bank USA|  | $| 23,400,000| |  | | 26.0| % Credit Suisse AG, Cayman Islands Branch|  | $| 10,800,000| |  | | 12.0| % Morgan Stanley Bank, N.A.|  | $| 10,800,000| |  | | 12.0| % Royal Bank of Canada|  | $| 10,800,000| |  | | 12.0| % UBS Loan Finance LLC|  | $| 10,800,000| |  | | 12.0| % Total|  | $| 90,000,000| |  | | 100| % "
"2.01 | Committed Loans; Reserves | 62 ---|---|--- 2.02 | Borrowings, Conversions and Continuations of Committed Loans | 63 2.03 | Letters of Credit | 65 2.04 | Swing Line Loans | 73 2.05 | Prepayments | 76 2.06 | Termination or Reduction of Commitments | 77 2.07 | Repayment of Loans | 78 2.08 | Interest | 78 2.09 | Fees | 79 2.10 | Computation of Interest and Fees | 79 2.11 | Evidence of Debt | 79 2.12 | Payments Generally; Administrative Agents Clawback | 80 2.13 | Sharing of Payments by Lenders | 81 2.14 | Settlement Amongst Lenders | 82 2.15 | Increase in Commitments | 83 2.16 | Extensions of Commitments | 85 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER"
"10.01 | Amendments, Etc. | 135 ---|---|--- 10.02 | Notices; Effectiveness; Electronic Communications | 137 10.03 | No Waiver; Cumulative Remedies | 139 10.04 | Expenses; Indemnity; Damage Waiver | 139 10.05 | Payments Set Aside | 141 10.06 | Successors and Assigns | 142 10.07 | Treatment of Certain Information; Confidentiality | 145 10.08 | Right of Setoff | 146 10.09 | Interest Rate Limitation | 147 10.10 | Counterparts; Integration; Effectiveness | 147 10.11 | Survival | 147 10.12 | Severability | 147 10.13 | Replacement of Lenders | 148 10.14 | Governing Law; Jurisdiction; Etc. | 148 10.15 | Waiver of Jury Trial | 149 10.16 | No Advisory or Fiduciary Responsibility | 149 10.17 | USA Patriot Act | 150 10.18 | Time of the Essence | 150 10.19 | Press Releases | 150 10.20 | Additional Waivers | 151 10.21 | No Strict Construction | 152 10.22 | Attachments | 152 10.23 | Conflict of Terms | 152 10.24 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 152 "
"This ASSET-BASED REVOLVING CREDIT AGREEMENT (Agreement) is entered into as of February 17, 2017 among Keane Group Inc., a Delaware corporation (the Parent), Keane Group Holdings, LLC, a Delaware limited liability company (the Lead Borrower), the Persons named on Schedule 1.01A hereto (and together with the Lead Borrower and each other Person that becomes a Borrower hereunder in accordance with the terms hereof, collectively, the Borrowers), the Guarantors, each lender from time to time party hereto (collectively, the Lenders and individually, a Lender) and Bank of America, N.A. as Administrative Agent and Collateral Agent."
"Account means accounts as defined in the UCC, and also means a right to payment of a monetary obligation whether or not constituting accounts as defined in the UCC, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card."
"Adjusted LIBOR Rate means, with respect to any LIBOR Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of one percent (1%)) equal to the LIBOR Rate for such Interest Period multiplied by the Statutory Reserve Rate. The Adjusted LIBOR Rate will be adjusted automatically as to all LIBOR Borrowings then outstanding as of the effective date for the change in the Statutory Reserve Rate."
"Borrowers has the meaning provided in the introductory paragraph hereto. At the request of the Lead Borrower and with the consent of the Administrative Agent, any Restricted Subsidiary of the Parent that is a Domestic Subsidiary may be designated as a Borrower, subject to (a)executing and delivering a joinder agreement to this Agreement and such other documents as the Administrative Agent reasonably requests in which case such Borrower shall be jointly and severally liable with the other Borrowers for all Obligations under this Agreement and (b) the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act reasonably requested by the Lenders."
"Collateral means any and all Collateral as defined in any applicable Security Document and all other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Collateral Agent, which will exclude, for the avoidance of doubt, Excluded Property (including all Real Estate)."
(9)the income (or loss) of a Subsidiary during such Measurement Period and accrued prior to the date it becomes a Subsidiary of any of the Keane Group or is merged into or consolidated with any of the Keane Group or that Persons assets are acquired by any of the Keane Group shall be excluded.
"Customer means the account debtor with respect to any Account and/or the prospective purchaser of goods, services or both with respect to any contract or contract right, and/or any party who enters into or proposes to enter into any contract or other arrangement with any Loan Party, pursuant to which such Loan Party is to deliver any personal property or perform any services."
"Eligible Assignee means, subject to Section 10.06(b) hereof, (a) a Credit Party or any of its Affiliates; (b) a bank, insurance company, or entity engaged in the business of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Credit Party assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Credit Partys rights in and to a material portion of such Credit Partys portfolio of asset based credit facilities, and (e) any other Person (other than a natural person) approved by the Administrative Agent, provided that notwithstanding the foregoing, Eligible Assignee shall not include a Loan Party, any of the Loan Parties Affiliates or Subsidiaries or any Disqualified Institution, provided further that the Administrative Agent shall have the right, and the Lead Borrower hereby expressly"
"(e)the Customer shall (i) apply for, suffer, or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its present business, (iii) make a general assignment for the benefit of creditors, (iv) commence a voluntary case or proceeding under any state or federal bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition which is filed against it in any involuntary case under such bankruptcy laws, or (viii) take any action for the purpose of effecting any of the foregoing;"
"Eligible Frac Iron means, with respect to each Loan Party, all Frac Iron awaiting deployment for service which the Collateral Agent, in its judgment, exercised in its Permitted Discretion, shall not deem ineligible Equipment, based on such considerations as the Collateral Agent may from time to time deem appropriate. In addition, Frac Iron shall not be Eligible Frac Iron if it (a) is not subject to a perfected, first priority security interest in favor of the Collateral Agent and no other Lien (other than a Permitted Encumbrance), (b) does not conform to all standards imposed by any Governmental Authority which has regulatory authority over such goods or the use or sale thereof, (c) is in transit, other than such Equipment that is in transit (i) between locations of the Loan Parties or (ii) from a vendor located in the United States to a Loan Party, so long as title to such in transit Equipment has passed to such Loan Party, (d) is located outside the continental"
"(l)the Account is subject to any offset, deduction, defense, dispute, or counterclaim (to the extent of such offset, deduction, defense, dispute or counterclaim), except in the ordinary course of business, or the Customer is also a creditor or supplier of a Loan Party (to the extent of any amounts owed by such Borrower to such Customer as a creditor or supplier), or the obligations of the Customer to make payment with respect to such Account is otherwise contingent, unliquidated or unfixed (but only to the extent of such contingency);"
"FATCA means Sections 1471 through 1474 of the Code as in effect on the Effective Date (and as amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future United States Treasury Department regulations or other official administrative interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the current Code (or any amended or successor version described above) and any intergovernmental agreements (and any related laws or official administrative guidance) implementing the foregoing."
"(h)loans or advances to officers, directors and employees of any Loan Party (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes and (ii) for any other purposes not described in the foregoing clause (i); provided that the aggregate principal amount outstanding at any time under clause (ii) above shall not exceed $5,000,000;"
"Swing Line Loan Notice means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower."
"Termination Date means the earliest to occur of (a) the latest Maturity Date of any Class of Loans, (b) the date on which the maturity of the Obligations is accelerated (or deemed accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article VIII, or (c) the termination of the remaining Commitments in accordance with the provisions of Section 2.06 hereof."
"Transactions means, collectively, (a) the execution and delivery of this Agreement and the Loan Documents to be entered into on the Effective Date, (b) the execution and delivery of the amendment to the Existing Note Purchase Agreement and any other agreements, instruments and documents to be entered therewith on the Effective Date, and the repayment in full or in part of the Existing NPA Debt, (c) the repayment in full of the Indebtedness under,"
"and the termination of, the Existing ABL Credit Agreement, (d) the repayment in full of the Indebtedness under, and the termination of, the Existing Term Loan Credit Agreement, (e) the consummation of any other transactions in connection with the foregoing, (f) the consummation of any Designated Senior Indebtedness, and (g) the payment of fees, premiums and expenses in connection with the foregoing."
"Consolidated Fixed Charge Coverage Ratio for the Measurement Period most recently ended on or prior to the date of such designation is at least 1.00 to 1.00, (iii) the Loan Parties shall have satisfied the Payment Conditions with respect to Restricted Payments, and (iv) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it is a Restricted Subsidiary for the purpose of the Designated Senior Indebtedness. Other than with respect to Subsidiaries designated as Unrestricted Subsidiaries on the Effective Date, the designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Parent therein at the date of designation in an amount equal to the Fair Market Value of the Parents and its Subsidiaries investment therein. Other than with respect to Subsidiaries designated as Unrestricted Subsidiaries on the Effective Date designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the Parent in such Unrestricted Subsidiary pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of the Borrowers Investment in such Subsidiary."
"Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the quotient obtained by dividing (a) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment, by (b) the sum of all such payments."
"(b)The Administrative Agent shall have the right, at any time and from time to time after the Effective Date in its Permitted Discretion to establish, modify or eliminate Reserves upon three (3) Business Days prior written notice to the Lead Borrower (during which period the Administrative Agent shall be available to discuss in good faith any such proposed Reserve with the Lead Borrower and the Loan Parties may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or modification no longer exists); provided that no such prior notice shall be required for (1) changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation previously utilized, or (2) changes to Reserves or establishment of additional Reserves if it would be reasonably likely that a Material Adverse Effect to the Lenders would occur were such Reserve not changed or established prior to the expiration of such three (3) Business Day period, or (3) changes to Reserves when a Default or Event of Default exists. Promptly after the Administrative Agent has knowledge that the event, condition or matter which is the basis for the establishment of a Reserve no longer exists, the Administrative Agent shall eliminate such Reserve."
"(b)Each Committed Borrowing, each Conversion of Committed Loans from one Type to the other, and each continuation of LIBOR Rate Loans shall be made upon the Lead Borrowers irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, Conversion to or continuation of LIBOR Rate Loans or of any Conversion of LIBOR Rate Loans to Base Rate Loans, and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Lead Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration as provided in the definition of Interest Period, the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Lead Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each telephonic notice by the Lead Borrower pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Each Borrowing of, Conversion to or continuation of LIBOR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or Conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Lead Borrower is requesting a Committed Borrowing, a Conversion of Committed Loans from one Type to the other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing, Conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, Converted or continued, (iv) the Class and Type of Committed Loans to be borrowed or to which existing Committed Loans are to be Converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Lead Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Lead Borrower fails to give a timely notice requesting a Conversion or continuation, then the applicable Committed Loans shall be made as, or Converted to, Base Rate Loans. Any such automatic Conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If the Lead Borrower requests a Borrowing of, Conversion to, or continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be Converted to a LIBOR Rate Loan."
"(f)The Administrative Agent shall promptly notify the Lead Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Lead Borrower and the Lenders of any change in Bank of Americas prime rate used in determining the Base Rate promptly following the public announcement of such change."
"(C)such Letter of Credit is to be denominated in a currency other than Dollars; provided that if such L/C Issuer, in its discretion, issues a Letter of Credit denominated in a currency other than Dollars, all reimbursements by the Borrowers of the honoring of any drawing under such Letter of Credit shall be paid in the currency in which such Letter of Credit was denominated;"
"(i)Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Lead Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 12:00 p.m. at least two (2) Business Days (or such other date and time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the applicable L/C Issuer may reasonably require. Additionally, the Lead Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer or the Administrative Agent may reasonably require."
"(iii)With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lenders payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03."
"(v)Each Lenders obligation to make Committed Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit issued by it, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lenders obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Lead Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse an L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein."
"deliver to the Administrative Agent, for the benefit of the applicable L/C Issuers and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances in an amount equal to 103% of the Outstanding Amount of all L/C Obligations, pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and such L/C Issuers (which documents are hereby consented to by the Lenders). The Borrowers hereby grant to the Collateral Agent a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing to secure all Obligations. Such cash collateral shall be maintained in blocked, non- interest bearing deposit accounts at Bank of America, except that Permitted Investments of the type listed in clause (a) of the definition thereof may be made at the request of the Lead Borrower at the option and in the sole discretion of the Administrative Agent (and at the Borrowers risk and expense); and interest or profits, if any, on such investments shall accumulate in such account. If at any time the Administrative Agent reasonably determines that any funds held as cash collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as cash collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent reasonably determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as cash collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the applicable L/C Issuer and, to the extent not so applied, shall thereafter be applied, to the extent permitted under applicable Law, to satisfy other Obligations."
"(b)Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Lead Borrowers irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing"
"(ii)If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lenders payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation."
"(iii)If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender"
"(a)The Commitment Fee. In addition to certain fees described in subsections (i) and (j) of Section 2.03, the Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to (i) 1.25% per annum multiplied by the average daily amount by which the Aggregate Commitments exceed the Total Outstandings if such average daily excess amount over the most recently ended Fiscal Quarter as a percentage of the Aggregate Commitments is less than or equal to 50% or (ii) 1.00% per annum multiplied by the average daily amount by which the Aggregate Commitments exceed the Total Outstandings if such average daily excess amount over the most recently ended Fiscal Quarter as a percentage of the Aggregate Commitments is greater than 50%. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the first day of each April, July, October and January, commencing with the first such date to occur after the Effective Date, and on the last day of the Availability Period."
(b)Other Fees. The Borrowers shall pay to the (i) Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter and (ii) Arrangers the fees separately agreed to by such Arrangers and the Lead Borrower. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
"2.10Computation of Interest and Fees. All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error."
"(a)The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by the Administrative Agent (the Loan Account) in the ordinary course of business. In addition, each Lender may record in such Lenders internal records, an appropriate notation evidencing the date and amount of each Loan from such Lender, the Class thereof, each payment and prepayment of principal of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lenders Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. Upon receipt of an affidavit of a Lender as to the loss, theft, destruction or mutilation of such Lenders Note and upon cancellation of such Note, the Borrowers will issue, in lieu thereof, a replacement Note in favor of such Lender, in the same principal amount thereof and otherwise of like tenor."
and Extended Loans shall be governed by the assignment and participation provisions set forth in Section 10.06 and (III) permanent repayments of Extended Loans (and corresponding permanent reduction in the related Extended Commitments) shall be permitted as may be agreed between the Borrowers and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Loans or Commitments of any Existing Class converted or exchanged into Extended Loans or Extended Commitments pursuant to any Extension Request. Any Extended Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from Existing Commitments of the Specified Existing Commitment Class and from any other Existing Commitments (together with any other Extended Commitments so established on such date).
"(c)Indemnification by the Loan Parties. The Loan Parties shall, jointly and severally, indemnify the Agents and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) paid by such Agent or such Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Lead Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of the Collateral Agent or a Lender, shall be conclusive absent manifest error."
"Without limiting the generality of the foregoing, each Lender shall deliver to the Lead Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Lead Borrower or the Administrative Agent), whichever of the following is applicable:"
"(c)The Administrative Agent shall have received at least three (3) Business Days prior to the Effective Date all documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, that has been reasonably requested by the Arrangers at least ten (10) days prior to the Effective Date."
"(a)The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all Material Indebtedness and other liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness."
"(b)There are no pending or, to the best knowledge of the Lead Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect."
"(c)(i) No ERISA Event has occurred or is reasonably expected to occur that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect; (ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and to the best knowledge of the Lead Borrower, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect; and (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would be subject to Sections 4069 or 4212(c) of ERISA that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect."
"(a)The Security Agreement creates in favor of the Collateral Agent, for the benefit of the Credit Parties referred to therein, a legal, valid, and enforceable security interest in the Collateral (as defined in the Security Agreement), the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. Upon the filing of UCC financing statements in proper form, and delivery to the Collateral Agent of all possessory collateral required to be delivered by the Security Agreement and/or the obtaining of control (as defined in the UCC) by the Collateral Agent"
"(b)When the Security Agreement (or a short form thereof) in proper form is filed in the United States Patent and Trademark Office and the United States Copyright Office and when financing statements, releases and other filings in appropriate form are filed in the offices specified on Schedule II of the Security Agreement, the Collateral Agent shall have a fully perfected Lien on, and security interest in, all right, title and interest of the applicable Loan Parties in the Intellectual Property Collateral (as defined in the Security Agreement) in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any other Person to the extent required by the Loan Documents, subject to Permitted Encumbrances having priority under applicable Law (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks, trademark applications and copyrights acquired by the Loan Parties after the Effective Date)."
"5.24Use of Proceeds. On the Effective Date, the proceeds of the initial Commitments (in addition to Letters of Credit issued hereunder) will, subject to the Loan Cap, be used to repay all or a portion of the Indebtedness under the Existing ABL Credit Agreement, the Existing Note Purchase Agreement and for general corporate purposes. Following the Effective Date, the Loans will be used by the Parent and its Subsidiaries for working capital (including the purchase of Inventory and Equipment) and general corporate purposes (including Permitted Acquisitions and other Investments)."
"Group as of the end of such Fiscal Quarter in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and that prior Fiscal Year results are not required to be restated for changes in discontinued operations and (y) a copy of managements discussion and analysis with respect to the financial statements of such Fiscal Quarter, all of which shall be in form and detail reasonably satisfactory to the Administrative Agent;"
"(d)concurrently with the delivery of the financial statements referred to in Sections6.01(a), (b) and (c), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Lead Borrower (i) certifying that no Default or Event of Default has occurred and is continuing, or if a Default or Event of Default has occurred and is continuing, the nature and extent thereof and the expected remedial actions, (ii) certifying that such financial statements fairly present the financial condition and results of operations in accordance with GAAP and (iii) with respect to financial statements delivered pursuant to Sections6.01(a) and (b), setting forth reasonably detailed calculations with respect to the Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);"
"and be available to, the Administrative Agent or its representatives to discuss the Loan Parties financial performance, financial condition, operating results, controls, and such other matters, within the scope of the retention of such Registered Public Accounting Firm, as may be raised by the Administrative Agent; provided that an officer of the Lead Borrower shall be entitled to participate in any such discussions."
"(e)Upon the request of the Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above."
 (xiii)any purchases by the Parents Affiliates of Indebtedness or Disqualified Stock of the Parent or any of its Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Parents Affiliates; provided that such purchases by the Parents Affiliates are on the same terms as such purchases by such Persons who are not the Parents Affiliates;
"(iv) amounts payable pursuant to employment and severance arrangements between the Keane Group and their respective current, former and future officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business and payments or loans (or cancellation of loans) to employees or consultants in the ordinary course of business which are approved by a majority of the Board of Directors of the Parent in good faith;"
"no more restrictive than those set forth in the Existing Note Purchase Agreement, (xii) represent Indebtedness of a Restricted Subsidiary of the Parent which is not a Loan Party which is permitted by Section 7.03 to the extent applying only to such Restricted Subsidiary, (xiii) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under clauses (c), (g) and (t) of the definition of Permitted Indebtedness but solely to the extent any negative pledge relates to the property financed by such Indebtedness, (xiv) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business or (xv) arise in connection with cash or other deposits permitted under clauses (c), (d), (u), or (x) of the definition of Permitted Encumbrances or clauses (a), (i) and (k) of the definition of Permitted Investments and in all instances limited to such cash or deposit."
"7.14Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the last day of any Measurement Period to be lower than 1.00 to 1.00; provided that such Consolidated Fixed Charge Coverage Ratio will only be tested upon the occurrence of a Covenant Trigger Event, as of the last day of the Measurement Period ending immediately prior to the date on which such Covenant Trigger Event shall have occurred and shall continue to be tested as of the last day of each Measurement Period thereafter until such Covenant Trigger Event is no longer continuing; providedfurther that the results of operation and indebtedness of any Unrestricted Subsidiaries shall not be taken into account for purposes of compliance with this Section 7.14."
"(d)Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith (including, without limitation, any Borrowing Base Certificate) shall be incorrect or misleading in any material respect (or, if already subject to qualification by materiality, in any respect) when made or deemed made; or"
"(b)Notwithstanding anything herein to the contrary, (i) in each twelve month period there shall be at least two Fiscal Quarters with respect to which the Cure Right is not exercised, (ii) there shall be no more than five Cure Rights exercised during the term of this Agreement, (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.14 and (iv) all Cure Amounts shall be disregarded for purposes of determining any baskets or ratios with respect to the other covenants contained in the Loan Documents."
"9.02Rights as a Lender. The Persons serving as the Agents hereunder shall have the same rights and powers in their capacity as a Lender as any other Lender and may exercise the same as though they were not the Administrative Agent or the Collateral Agent and the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent or the Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any Restricted Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent or the Collateral Agent hereunder and without any duty to account therefor to the Lenders."
"9.06Resignation of Agents. Any Agent may at any time give written notice of its resignation to the Lenders, each L/C Issuer and the Lead Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the approval of the Lead Borrower (as long as no Event of Default then exists), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 60 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and each L/C Issuer with the approval of the Lead Borrower (as long as no Event of Default then exists), appoint a successor Administrative Agent or Collateral Agent, as applicable, meeting the qualifications set forth above; provided that if the Administrative Agent or the Collateral Agent shall notify the Lead Borrower and the Lenders that no qualifying Person has accepted such appointment within 60 days after the retiring Agent gives notices of its resignation, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Collateral Agent on behalf of the Lenders or each L/C Issuer under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successors appointment as Administrative Agent or Collateral Agent, as applicable, hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Lead Borrower and such successor. After the retiring Agents resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Administrative Agent or Collateral Agent hereunder."
"If any Lender does not consent (a Non-Consenting Lender) to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Lead Borrower may replace such Non-Consenting Lender with respect to the Class of Loans or Commitments that is subject to the related consent, waiver or amendment in accordance with Section 10.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Lead Borrower to be made pursuant to this paragraph)."
"(b)Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:"
"(A)in the case of an assignment of the entire remaining amount of the assigning Lenders Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, no minimum amount need be assigned; and"
"(b)SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE"
"(b)Each Loan Party consents to the publication by Administrative Agent or any Lender of advertising material relating to the financing transactions contemplated by this Agreement using any Loan Partys name, product photographs, logo or trademark upon the Lead Borrowers approval, not to be unreasonably delayed or withheld. Administrative Agent or such Lender shall provide a draft reasonably in advance of any advertising material to the Lead Borrower for review and comment prior to the publication thereof. The Administrative Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements."
"2 Each Borrowing of, Conversion to, or continuation of LIBOR Rate Loans must be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans must be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof."
" | KEANE FRAC, LP |  ---|---|---  |  |   |  |  |   | By: | Keane Frac GP, LLC, its General Partner |   | By: | KGH Intermediate Holdco II, LLC, its Managing Member |   |  |  |   |  |  |   | By: |  |   |  | Name: | Gregory Powell |   |  | Title: | President and Chief Financial Officer |  "
"| 1.| The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to the Assignors rights and obligations as a Lender under the Credit Agreement as of the date hereof (including, without limitation, such interest in each of the Assignors outstanding Commitments, if any, and the Loans (and related Obligations) owing to it) specified in Section 1 of Schedule I hereto. After giving effect to such sale and assignment, the Assignors and the Assignees Commitments and the amount of the Loans owing to the Assignor and the Assignee and the amount of Letters of Credit participated in by the Assignor and the Assignee will be as set forth in Section 2 of Schedule I hereto. ---|---|--- | 2.| The Assignor: (a) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Liens and that it is legally authorized to enter into this Assignment and Assumption; (b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in, or in connection with, the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto, or (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; and (d) confirms, in the case of an Assignee who is not a Lender, an Affiliate of a Lender, or an Approved Fund, the aggregate amount of the Commitment ---|---|---  ---  --- (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the Assignor subject to this Assignment and Assumption, is not less than $____________, or, if less, the entire remaining amount of the Assignors Commitment and the Loans at any time owing to it, unless each of the Administrative Agent, the L/C Issuers and the Swing Line Lender and, so long as no Event of Default pursuant to Sections 8.01(a), (f) or (g) of the Credit Agreement has occurred and is continuing, the Lead Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed)."
"Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii)it is not a 10-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with the undersigneds conduct of a U.S. trade or business."
"3.Revolving Loans. The Company acknowledges that, as a result of the Designated Defaults, the Bank is no longer obligated to make Revolving Loans under the Loan Agreement. Notwithstanding the foregoing, during the Forbearance Period and so long as no Default has occurred, the Bank hereby agrees to continue to make Revolving Loans under the Loan Agreement, subject to the terms of the Loan Agreement as modified by this Agreement."
"8.Additional Reporting. In addition to the reporting requirements contained in the Loan Documents, throughout the Forbearance Period, the Company shall provide or cause to be provided to the Bank in form and level of detail reasonably satisfactory to the Bank: (i) on or before Monday of each week, an updated 13-week cash flow forecast for the Company, setting forth a projected Net Cash Flow and including an actual versus projected results (including an actual Net Cash Flow) for the preceding week (a Cash Flow Forecast); (ii) on or before the 15th day of each month, financial statements and reports for the Company on a monthly and year-to-date basis, including an income statement, balance sheet and statement of cash flows, together with an accounts receivable aging report and an accounts payable aging report; and (iii) such other financial information as may be reasonably requested by the Bank. As used herein, Net Cash Flow means, with reference to any period, the Companys cash capital contributions and other receipts of cash (including but not limited to cash received from operations) for such period minus the Companys actual cash uses for such period."
"(a)Except with respect to the Designated Defaults or any other failure of the Company to comply with Sections 5(g)(i) and 5(g)(ii) of the Loan Agreement, any breach or default in or failure to perform or observe any term, condition, or covenant set forth in, or any Event of Default under any of the Loan Documents, or any other document previously, now, or hereafter executed and delivered by the Company to the Bank shall occur after the date hereof, including but not limited to any failure of the Company to pay when due any principal or interest owing under the Loan Documents or any default in the performance of any obligation under Sections 5 or 6 of the Loan Agreement; or"
"(d)(i) The Company shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, readjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Company any case, proceeding or other action of a nature referred to in clause (i) above that results in the entry of an order for relief or any such adjudication or appointment; or (iii) there shall be commenced against the Company any case, proceeding or other action seeking issuance of a writ of attachment, execution, distraint or similar process against all or any substantial part of its assets, which results in the entry of an order for any such relief; or (iv) the Company shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clauses (i), (ii) or (iii) above; and"
"25.Effect and Construction of Agreement. Except as expressly provided herein, the Loan Documents shall remain in full force and effect in accordance with their respective terms, and this Agreement shall not be construed to (a) impair the validity, perfection or priority of any lien or security interest securing the Indebtedness, (b) waive or impair any rights, powers or remedies of the Bank under the Loan Documents upon termination of the Forbearance Period, (c) constitute an agreement by the Bank or require the Bank to extend the Forbearance Period, grant additional forbearance periods or extend the time for payment of any of the Indebtedness, or (d) make any loans or other extensions of credit to the Company after termination of the Forbearance Period. In the event of any inconsistency between the terms of this Agreement and any of the Loan Documents, this Agreement shall govern. The Company acknowledges that it has consulted with counsel and with such other experts and advisors as it has deemed necessary in connection with the negotiation, execution, and delivery of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring that it be construed against the party causing this Agreement or any part hereof to be drafted."
"All such notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, provided that if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day."
"34.Attorneys Fees. The Company shall reimburse the Bank promptly upon demand for all costs and expenses, including without limitation reasonable attorneys fees and expenses (without any requirement to produce a detailed time analysis), expended or incurred by the Bank (regardless whether arising out of any arbitration, judicial reference or legal action), in connection with (a) the structuring, negotiation and preparation of, or the interpretation of, or the amendment or enforcement of, this Agreement and the Loan Documents, including without limitation during any workout, attempted workout and/or in connection with the rendering of legal advice as to the Banks rights, remedies and obligations under this Agreement or any of the Loan Documents, whether or not any form of legal proceeding has commenced, (b)collecting any sum that becomes due the Bank under this Agreement or any of the Loan Documents, (c) any proceeding for declaratory relief, any counterclaim to any proceeding or any appeal, (d) the protection, preservation or enforcement of any rights or remedies of the Bank or any of the Collateral, whether or not any form of legal proceeding is commenced, or (e) any action to defend, protect, assert or preserve any of the Banks rights or remedies as a result of or related to any case or proceeding under Chapter 11 of the United States Code, as amended, or any similar law of any jurisdiction. All of such costs and expenses shall bear interest from the time of demand at the highest rate then in effect under the Loan Documents or this Agreement and shall be considered part of the Indebtedness, as that term is defined in this Agreement. The Company hereby irrevocably authorizes the Bank to charge any account of the Company maintained with the Bank or affiliate thereof, for each payment of any cost, expenses or fee (including the Forbearance Fee), as it becomes due under this Agreement or any Loan Document. In addition, the Company hereby irrevocably authorizes the Bank (a) to automatically debit any account of the Company, or (b) on behalf of the Company, to make one or more advances from time to time under the Revolving Loans, in each case, to pay when due any payment of principal, interest, or other charges or fees (including the Forbearance Fee), or the payment of any expense or indemnification owing to the Bank pursuant to the terms of this Agreement or the Loan Document."
"Permitted EBITDA Add Back shall mean, to the extent such charges are deducted in the computation of net income of the Loan Parties in their computation of EBITDA during the period specified, with appropriate adjustments for the tax effects of such add-backs, charges incurred by the Loan Parties in connection with environmental response and remediation, the presence of contamination, natural resource damages or reimbursement of the EPA for incurred costs at the Fox River site, Wisconsin, OU2-5, provided that the total amount of such charges incurred during the term of this Agreement may not exceed [*******]."
"|  | BB-/Ba3 |  |  | 3.75 | % |  |  | 2.75 | % |  |  | 0.50 | % | |  | 3.50 | % (b) For any fiscal quarter during which the Total Leverage Ratio as of the last day of such fiscal quarter is less than 4.00 to 1.00, the Pricing Schedule is as follows:"
"THIS INCREMENTAL INCREASE AGREEMENT (this Agreement) dated as of [], is between [Insert name of Increasing Lender1] (the Increasing Lender), SESI, L.L.C., a Delaware limited liability company (Borrower), Superior Energy Services, Inc. (Parent) [and][,] JPMorgan Chase Bank, National Association, as administrative agent (in such capacity, the Administrative Agent) [and JPMorgan Chase Bank, National Association and Bank of America, N.A., each as an Issuing Lender (collectively, Issuing Lenders)]. Unless otherwise defined herein, each capitalized term used herein has the meaning assigned to it in the Credit Agreement."
"A. Reference is made to the Fourth Amended and Restated Credit Agreement dated as of February22, 2016 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the Credit Agreement), among the Borrower, the Parent, the Administrative Agent, the Issuing Lenders and each lender and other party from time to time party thereto."
"(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower (i)setting forth resolutions of its board of directors or other appropriate governing body with respect to the authorization of the Borrower to execute and deliver this Agreement and (ii)otherwise substantially in the form of the certificate delivered on the Closing Date pursuant to Section6.01(c) of the Credit Agreement, with appropriate insertions and attachments referenced in such section, and if no amendments or other modifications have been made to the attachments and documents included in such certificate since the Closing Date, certification by such Responsible Officer that no changes have occurred in any such documents, as applicable."
"Section1.07 Severability. Any provision in this Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Agreement are declared to be severable."
"A. Reference is made to the Credit Agreement dated as of November18, 2011, (as amended by Amendment No.1 and Consent dated as of December18, 2013 and Amendment No.2 and Consent dated as of January30, 2015, the Existing Credit Agreement), among the Company, Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, Duke Energy Progress and Duke Energy Florida (the Existing Borrowers, and together with Piedmont, the Borrowers), the Lenders party thereto (the Existing Lenders) and Wells Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the Administrative Agent) and as swingline lender (in such capacity, the Swingline Lender)."
"Borrower Maturity Date means, with respect to any Revolving Credit Loan to any Borrower other than the Company, the first anniversary of the date of the Borrowing of such Revolving Credit Loan; provided that if the Borrower designates such Borrowing as long-term in its Notice of Borrowing, then the Borrower Maturity Date shall not be applicable thereto."
"published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Wells Fargo on such day on such transactions as determined by the Administrative Agent; provided further, that, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. ."
"Hedging Agreement means for any Person, any and all agreements, devices or arrangements designed to protect such Person or any of its Subsidiaries from the fluctuations of interest rates, exchange rates applicable to such partys assets, liabilities or exchange transactions, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, commodity swap agreements, forward rate currency or interest rate options, puts and warrants. Notwithstanding anything herein to the contrary, Hedging Agreements shall also include fixed-for-floating interest rate swap agreements and similar instruments."
"Indebtedness of any Person means at any date, without duplication, (i)all obligations of such Person for borrowed money, (ii)all indebtedness of such Person for the deferred purchase price of property or services purchased (excluding current accounts payable incurred in the ordinary course of business), (iii)all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired, (iv)all indebtedness under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases in respect of which such Person is liable as lessee, (v)the face amount of all outstanding letters of credit issued for the account of such Person (other than letters of credit relating to indebtedness included in Indebtedness of such Person pursuant to another clause of this definition) and, without duplication, the unreimbursed amount of all drafts drawn thereunder, (vi)indebtedness secured by any Lien on property or assets of such Person, whether or not assumed (but in any event not exceeding the fair market value of the property or asset), (vii)all direct guarantees of Indebtedness referred to above of another Person, (viii)all amounts payable in connection with mandatory redemptions or"
"(c) Ticking Fee. The Company shall pay to the Administrative Agent, for the account of the Lenders ratably in proportion to their Percentages, a ticking fee calculated for each day at the Facility Fee Rate for such day (determined in accordance with the Pricing Schedule) on the aggregate amount of Delayed Additional Commitments, such fee to accrue beginning on the date that is 90 days after the Initial Effective Date and ending on the earliest of (i)the Second Effective Date, (ii)July8, 2012, and (iii)the date on which the Merger Agreement is terminated."
"Section ~~2.12~~ 2.11. Optional Prepayments. (a)The Borrower may (i)upon notice to the Administrative Agent not later than 11:00 A.M.(Eastern time) on any Domestic Business Day prepay on such Domestic Business Day any Group of Base Rate Loans and (ii)upon at least three Euro-Dollar Business Days notice to the Administrative Agent not later than 11:00 A.M.(Eastern time) prepay any Group of Euro-Dollar Loans, in each case in whole at any time, or from time to time in part in amounts aggregating $5,000,000 or any larger multiple of $1,000,000, by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment and together with any additional amounts payable pursuant to Section2.13. Each such optional prepayment shall be applied to prepay ratably the Loans of the several Lenders included in such Group or Borrowing."
"(b) The Borrower shall give the Issuing Lender notice, in form and substance reasonably satisfactory to the Issuing Lender and the Administrative Agent, at least three Domestic Business Days prior to the requested issuance of a Letter of Credit, or in the case of a Letter of Credit substantially in the form of ExhibitG, at least one Business Day prior to the requested issuance of such Letter of Credit, specifying the date such Letter of Credit is to be issued and describing the terms of such Letter of Credit (such notice, including any such notice given in connection with the extension of a Letter of Credit, a Notice of Issuance), substantially in the form of ExhibitF, appropriately completed. Upon receipt of a Notice of Issuance, the Issuing Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Lender of the contents thereof and of the amount of such Lenders participation in such Letter of Credit. The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article3, be subject to the conditions precedent that such Letter of Credit shall be denominated in U.S. dollars and shall be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender. Unless otherwise notified by the Administrative Agent, the Issuing Lender may, but shall not be required to, conclusively presume that all conditions precedent set forth in Article3 have been satisfied. The Borrower shall also pay to each Issuing Lender for its own account issuance, drawing, amendment and extension charges in the amounts and at the times as agreed between the Borrower and such Issuing Lender. Except for non-substantive amendments to any Letter of Credit for the purpose of correcting errors or ambiguities or to allow for administrative convenience (which amendments each Issuing Lender may make in its discretion with the consent of the Borrower), the amendment, extension or renewal of any Letter of Credit shall be deemed to be an issuance of such Letter of Credit. If any Letter of Credit contains a provision pursuant to which it is deemed to be"
"automatically renewed unless notice of termination is given by the Issuing Lender of such Letter of Credit, the Issuing Lender shall timely give notice of termination if (i)as of close of business on the seventeenth day prior to the last day upon which the Issuing Lenders notice of termination may be given to the beneficiaries of such Letter of Credit, the Issuing Lender has received a notice of termination from the Borrower or a notice from the Administrative Agent that the conditions to issuance of such Letter of Credit have not been satisfied or (ii)the renewed Letter of Credit would have a term not permitted by subsection (c)below."
"(ii) the existence of any claim, set-off, defense or other rights that the Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting), the Lenders (including the Issuing Lender) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto or thereto or any unrelated transaction;"
maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion dollars in respect of Eurocurrency liabilities (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to United States residents).
"(c) Interest. Each Swingline Loan shall bear interest on the outstanding principal amount thereof, payable at maturity, at a rate per annum equal to the sum of the LIBOR Market Index Rate plus the Applicable Margin for such day (or such other rate per annum as the Swingline Lender and the Borrower may mutually agree). Such interest shall be payable at the maturity of such Swingline Loan and, with respect to the principal amount of any Swingline Loan prepaid pursuant to subsection (d)or (e)below, upon the date of such prepayment. Any overdue principal of or interest on any Swingline Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of the Base Rate for such day plus 1%."
"(d) receipt by the Administrative Agent of all documents it may have reasonably requested prior to the date hereof relating to the existence of the Borrowers, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;"
"(b) receipt by the Administrative Agent of counterparts of the Joinder Agreement signed by each of the Progress Borrowers (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of facsimile or other written confirmation from such party of execution of a counterpart hereof by such party);"
"(d) within five days after any officer of such Borrower with responsibility relating thereto obtains knowledge of any Default, if such Default is then continuing, a certificate of an Approved Officer of such Borrower setting forth the details thereof and the action which such Borrower is taking or proposes to take with respect thereto;"
"Section5.08. Consolidations, Mergers and Sales of Assets. Such Borrower will not (i)consolidate or merge with or into any other Person or (ii)sell, lease or otherwise transfer, directly or indirectly, Substantial Assets to any Person (other than a Subsidiary of such Borrower); provided that such Borrower may merge with another Person if such Borrower is the Person surviving such merger and, after giving effect thereto, no Default shall have occurred and be continuing. Notwithstanding the foregoing, Duke Energy Ohio shall be permitted to transfer its generation assets consistent with the Opinion and Order of the Public Utilities Commission of Ohio, issued on November22, 2011, in PUCO Case No.11-3549."
"Section5.09. Use of Proceeds. The proceeds of the Loans and Letters of Credit made under this Agreement will be used by such Borrower for its general corporate purposes, including liquidity support for commercial paper and acquisitions. None of such proceeds will be used, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any margin stock within the meaning of Regulation U. None of such proceeds will be used (i)for the purpose of knowingly financing the activities of or any transactions with any Sanctioned Person or in any country, region or territory that is the subject of Sanctions applicable to the Company and its Subsidiaries and where the financed activity would be prohibited by such applicable Sanctions, at the time of such financing or (ii)in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti- Corruption Laws."
"Section7.06. Indemnification. Each Lender shall, ratably in accordance with its portion of the Aggregate Exposures, indemnify the Administrative Agent and its Related Parties (to the extent not reimbursed or indemnified by the Borrowers) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss, penalties or liability (except such as result from such indemnitees gross negligence or willful misconduct) that such indemnitees may suffer or incur in connection with this Agreement or any action taken or omitted by the Administrative Agent in its capacity as such, or by any Related Party acting for the Administrative Agent in connection with such capacity."
"(a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders and the Borrowers. Upon any such resignation, (i)the Company, with the consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), or (ii)if an Event of Default has occurred and is continuing, then the Required Lenders, shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $250,000,000."
"(b) If the Person serving as Administrative Agent is a Defaulting Lender, (i)the Company, with the consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), or (ii)if an Event of Default has occurred and is continuing, then the Required Lenders, shall have the right to appoint a successor Administrative Agent."
"(c) Each Lender will promptly notify the Borrowers and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Sectionand will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. A certificate of any Lender claiming compensation under this Sectionand setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods."
"(i) in the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x)with respect to payments of interest hereunder or under any Note, executed originals of IRS FormW-8BEN establishing an exemption from, or reduction of, U.S. ~~Federal~~ federal withholding Tax pursuant to the interest article of such tax treaty and (y)with respect to any other applicable payments hereunder or under any Note,IRS FormW-8BEN establishing an exemption from, or"
"Section8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i)the obligation of any Lender to make or to continue or convert outstanding Loans as or into Euro-Dollar Loans has been suspended pursuant to Section8.02 or (ii)any Lender has demanded compensation under Section8.03(a)with respect to its Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business Days prior notice to such Lender through the Administrative Agent, have elected that the provisions of this Sectionshall apply to such Lender, then, unless and until such Lender notifies the Borrowers that"
"(b) Each Borrower agrees to indemnify each Agent and each Lender (including each Issuing Lender) and the respective Related Parties of the foregoing (each an Indemnitee) and hold each Indemnitee harmless from and against any and all liabilities, losses, penalties, damages, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of one counsel for all Indemnitees taken as a whole and, in the case of any actual or potential conflict of interest, one additional counsel to each group of affected Indemnitees similarly situated taken as a whole, which may be incurred by such Indemnitee arising out of or in connection with any ~~investigative, administrative or judicial~~ claim, litigation, investigation or proceeding (whether or not such Indemnitee shall be designated a party thereto) relating to or arising out of this Agreement, or any actual or proposed use of proceeds of Loans ~~hereunder~~ or Letters of Credit hereunder (including any refusal by an Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection"
"Section9.12. USA Patriot Act. Each Lender hereby notifies each Borrower that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October26, 2001) (the Act), it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with the Act."
"4. We do not express any opinion as to the enforceability of any provisions contained in the Credit Agreement or the Notes purporting to require a party thereto to pay or reimburse attorneys fees incurred by another party, or to indemnify another party therefor, which may be limited by applicable statutes and decisions relating to the collection and award of attorneys fees, including but not limited to North Carolina General Statutes 6-21.2."
"2015 May Credit Agreement: that certain Credit Agreement, dated as of May 28, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time), by and among the Borrower, Morgan Stanley Senior Funding, Inc., as administrative agent, MUFG Union Bank, N.A., as successor collateral agent pursuant to the Successor Agent Agreement, and the lenders party thereto."
"Affiliate: as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, control of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether through the ownership of voting securities, by contract or otherwise."
"CNTA Ratio: as of any date of determination, (a) the Consolidated Net Tangible Assets of the Loan Parties as of the end of the most recent fiscal quarter for which an internal consolidated balance sheet of the Borrower and its Subsidiaries is available, divided by (b) the aggregate amount of First Lien Debt of the Loan Parties (as calculated under Section 6.1(b) hereof) outstanding on such date."
"Excluded Subsidiary: (a) any Foreign Subsidiary, (b) any Bankrupt Subsidiary for so long as such Bankrupt Subsidiary is a debtor under the Bankruptcy Code, (c) any Designated Project Subsidiary, (d) any Subsidiary of the Borrower that is (A) a Domestic Subsidiary of the Borrower substantially all of the assets of which consist of the Capital Stock of one or more Foreign Subsidiaries or, (B) a Domestic Subsidiary of the Borrower substantially all of the assets of which consist of the Capital Stock of one or more Subsidiaries described in clause (A) hereof (whether such ownership is directly held or through another one or more such Subsidiaries), (e) any Subsidiary of the Borrower (other than a Material Subsidiary) and any Material Project Subsidiary that is not a Guarantor as of the Closing Date or is thereafter designated by"
"Existing Credit Agreement: that certain Credit Agreement, dated as of December 10, 2010, among the Borrower, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as successor administrative agent pursuant to the Successor Agent Agreement, Citibank, N.A., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as co-documentation agents, Morgan Stanley Senior Funding, Inc., as syndication agent, MUFG Union Bank, N.A., as successor collateral agent pursuant to the Successor Agent Agreement and each of the lenders from time to time party thereto, as amended, amended and restated, modified or supplemented from time to time."
"First Lien Documents: this Agreement, the Existing Credit Agreement, each other Credit Agreement, the 2013 Credit Agreement, the 2015 May Credit Agreement, the 2015 December Credit Agreement, the 2016 May Credit Agreement, the 2016 December Credit Agreement, the indenture governing the 2022 Secured Notes, the indenture governing the 2024 Secured Notes, the indenture governing the 2026 Secured Notes, each agreement or instrument relating to any Specified Cash Management and Swap Obligations and each other agreement or instrument governing, or relating to, any First Lien Debt and the First Lien Security Documents."
"(a) that all First Lien Obligations will be and are secured equally and ratably by all First Liens at any time granted by the Borrower or any other Grantor to secure any obligations in respect of such Series of First Lien Debt, whether or not upon property otherwise constituting collateral for such Series of First Lien Debt, and that all such First Liens will be enforceable by the Collateral Agent for the benefit of all holders of First Lien Obligations equally and ratably;"
"(2) as to any Series of Second Lien Debt, the written agreement of the holders of such Series of Second Lien Debt, or their applicable Second Lien Representative on their behalf, in each case as set forth in the indenture, credit agreement, loan agreement, note agreement, promissory note, Hedge Agreement or other agreement or instrument evidencing or governing such Series of Second Lien Debt, for the enforceable benefit of all holders of each existing and future Series of Second Lien Debt, each existing and future Second Lien Representative, all holders of each existing and future Series of Second Lien Debt and each existing and future Second Lien Representative:"
"Permitted Replacement Commitment: any letters of credit, similar obligations and/or commitment to lend or provide Indebtedness that replaces any then- existing letters of credit, similar obligations or undrawn and unutilized commitment to lend or provide Indebtedness, in each case, that would constitute First Lien Debt; provided that the maximum principal amount of the replacement letters of credit, similar obligations and commitments may not exceed the maximum principal amount of the then-existing letters of credit, similar obligations and commitments."
"case may be, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders of such loan or Term Loans, as the case may be, and without taking into account any fluctuations in the Eurodollar Rate) that is less than the effective interest cost for or weighted average yield (as determined by the Administrative Agent on the same basis) of the Term Loans, including without limitation, as may be effected through any amendment to this Agreement relating to the interest rate for, or weighted average yield of, the Term Loans."
"(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. References to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time to the extent permitted herein."
"2.2. Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent irrevocable notice substantially in the form of Exhibit B hereto (which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time (a) three (3) Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans (or no later than 9:00 a.m., New York City time, on the Closing Date in the case of Eurodollar Loans to be incurred on such date) or (b) on the Closing Date, in the case of Base Rate Loans) requesting that the applicable Lenders make the Term Loans on the requested Borrowing Date and specifying the amount to be borrowed. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing Date, each Lender shall make available to the Administrative Agent at the"
"(d) The Borrower shall indemnify the Administrative Agent and each Lender (within 30 days after demand therefor) for the full amount of any Non-Excluded Taxes or Other Taxes (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19), and for any reasonable expenses arising therefrom or with respect thereto, that may become payable by the Administrative Agent or any Lender, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower shall not"
"(iii)If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or has not complied with such Lenders FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment."
"3.11. Federal Reserve Regulations No part of the proceeds of any Term Loan will be used (a) for buying or carrying any margin stock within the respective meanings of each of the quoted terms under Regulation U as now in effect for any purpose that violates the provisions of the Regulations of the Board of Governors or (b) for any purpose that violates the provisions of the Regulations of the Board of Governors. Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any margin stock."
"3.16. Investment Company Act; Other Regulations. No Loan Party is an investment company, or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board of Governors) that limits its ability to incur Indebtedness under this Agreement and the other Loan Documents."
"(b) The activities of each of the Borrower, its Subsidiaries, and each of its and their respective officers, directors or employees, in their capacities as such, have not violated, and the Borrowers participation in the transactions contemplated by the Loan Documents will not violate, (i) the Foreign Corrupt Practices Act of 1977 (the FCPA), (ii) anti-bribery laws, including any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997 (excluding the FCPA) and (iii) anti-money laundering laws, including applicable federal, state, international, foreign or other laws or regulations regarding anti-money laundering, including Title 18 U.S. Code section 1956 and 1957, the Patriot Act and the Bank Secrecy Act, except in the case of each of clauses (ii) and (iii), for any violation which, singularly or in the aggregate with all other such violations, would not reasonably be expected to have a Material Adverse Effect."
"(b) Corporate Documents and Proceedings. The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, in the case of the Borrower, substantially in the form attached hereto as Exhibit A-1, and, in the case of the Guarantors, substantially in the form attached here to as Exhibit A-2, each with appropriate insertions and attachments, including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form (or, in the case of Loan Parties organized under the State of California, Illinois or Maine, a short form) good standing certificate for each Loan Party from its jurisdiction of organization."
"(i) Payment of Fees; Expenses. The Arrangers and the Administrative Agent shall have received all Fees required to be paid, and all reasonable costs and expenses required to be paid and for which invoices have been presented (including the reasonable fees and expenses of legal counsel), at least two (2) Business Days before the Closing Date."
"The Borrower hereby agrees that, so long as any Term Loan or other amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document (other than contingent indemnification obligations for which no claim has been asserted) or any Term Commitment is outstanding, the Borrower shall and shall cause each of the Guarantors to:"
"5.2. Compliance Certificate. The Borrower shall deliver to the Administrative Agent, within 90 days after the end of each fiscal year of the Borrower, an officers certificate of a Responsible Officer of the Borrower stating that a review of the activities of the Borrower and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Responsible Officer with a view to determining whether the Borrower has kept, observed, performed and fulfilled its obligations under this Agreement, and further stating, as to such Responsible Officer signing such certificate, that to the best of his or her knowledge the Borrower has kept, observed, performed and fulfilled each and every covenant contained in this Agreement and is not in default in the performance or observance of any of the terms, provisions and conditions of this Agreement (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action"
"(A) (i) The Borrower shall not, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not the Borrower is the surviving corporation); or (y) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:"
"(2)the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Borrower under this Agreement and the Security Documents pursuant to joinder agreements or other documents and agreements reasonably satisfactory to the Administrative Agent; and"
"(ii) any Loan Party shall, with respect to Limited Recourse Debt in an aggregate principal amount in excess of $300,000,000, default in the observance or performance of any agreement or condition relating to any such Limited Recourse Debt or contained in any instrument or agreement evidencing, securing or relating thereto, and such Limited Recourse Debt shall as a result thereof become due prior to its final stated maturity;"
"8.1. Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Each Lender hereby irrevocably designates and appoints the Collateral Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, none of the Administrative Agent and the Collateral Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent or the Collateral Agent."
"Cc: sonia.flores@unionbank.com (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or intranet websites or other information platform) (the Platform) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Sections 2.2, 2.8(e), 2.11, 2.13, 2.14, 2.15, 2.20 and 2.27(d) unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor."
"(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted, except that (i) unless otherwise permitted by Section 6.3 hereof, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section."
"For the purposes of this Section 9.6, Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an entity that administers or manages a Lender."
"9.10. Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents."
"(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, each of the Administrative Agent and the Collateral Agent is hereby irrevocably authorized by each Lender (and each such Lender hereby expressly consents) (without requirement of notice to or consent of any Lender except as expressly required by Section 9.1(a)) to take any action requested by the Borrower having the effect of releasing any Collateral or Guarantor from its guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 9.1(a), including, in each case and without limitation, any sale, transfer or other disposition of any Collateral or Guarantor (other than to the Borrower or another Guarantor), including as a result of any investments of Collateral in non-Guarantor Subsidiaries to the extent not prohibited by the Loan Documents, (ii) to the extent any such release is permitted at such time pursuant to the Collateral Agency and Intercreditor Agreement and/or the Guarantee and Collateral Agreement or (iii) under the circumstances described in paragraphs (b) or (c) below (and, upon the consummation of any such transaction in preceding clause (i), (ii) or (iii), such Collateral shall be disposed of free and clear of all Liens under the Security Documents and/or such Guarantor shall be released from its obligations under the Guarantee and Collateral Agreement)."
"1.The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without recourse to the Assignor, as of the Effective Date (as defined below), the interest described in Schedule 1 hereto (the Assigned Interest) in and to the Assignors rights and obligations under the Credit Agreement with respect to the Term Loans as are set forth on Schedule 1 hereto (the Assigned Facility), in a principal amount for the Assigned Facility as set forth on Schedule 1 hereto."
"Pursuant to the provisions of Section 2.19(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither the undersigned nor any of its applicable direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the Code), (iv) none of its applicable direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (v) none of its applicable direct or indirect partners/members is a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with the a United States trade or business conducted by the undersigned or its applicable direct or indirect partners/members."
"The undersigned has furnished its participating non-U.S. Lender with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such non-U.S. Lender in writing and (2) the undersigned shall have at all times furnished such non-U.S. Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments."
"Reply Procedures. In connection with any Auction, each Lender of the applicable tranche(s) wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation, in the form included in the respective Offer Document (each, a Return Bid) which shall specify (i) a discount to par that must be expressed as a price per $1,000 (in increments of $5) in principal amount of Term Loans (the Reply Price) of the applicable tranche within the Discount Range and (ii) the principal amount of Term Loans of the applicable tranche, in an amount not less than US$1,000,000 or an integral multiple of $1,000 in excess thereof, that such Lender offers for sale at its Reply Price (the Reply Amount). A Term Lender may submit a Reply Amount that is less than the minimum amount and incremental amount requirements described above only if the Reply Amount comprises the entire amount of the Term Loans of the applicable tranche held by such Lender. Lenders may only submit one Return Bid per tranche per Auction but each Return Bid may contain up to three component bids, each of which may result in a separate Qualifying Bid and each of which will not be contingent on any other component bid submitted by such Lender resulting in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held by the Auction Manager, an assignment and acceptance in the form included in the Offer Document (each, an Auction Assignment and Acceptance). The Borrower will not purchase any Term Loans at a price that is outside of the applicable Discount Range, nor will any Return Bids (including any component bids specified therein) submitted at a price that is outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price."
"Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the Borrower, will calculate the lowest purchase price (the Applicable Threshold Price) for such Auction within the Discount Range for such Auction that will allow the Borrower to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Term Loans for which the Borrower has received Qualifying Bids). Unless the Auction Notice is withdrawn in accordance with the terms hereof, the Borrower shall purchase Term Loans of the applicable tranche from each Lender whose Return Bid is within the Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a Qualifying Bid). All Term Loans of the applicable tranche included in Qualifying Bids (including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply Price lower than the Applicable Threshold Price will be purchased at such applicable Reply Prices and shall not be subject to proration."
"All questions as to the form of documents and validity and eligibility of Term Loans that are the subject of an Auction will be determined by the Auction Manager, in consultation with the Borrower, and their determination will be final and binding so long as such determination is not inconsistent with the terms of Section 2.28 of the Credit Agreement or this Exhibit I. The Auction Managers interpretation of the terms and conditions of the Offer Document, in consultation with the Borrower, will be final and binding so long as such interpretation is not inconsistent with the terms of Section 2.28 of the Credit Agreement or this Exhibit I."
"Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered."
"Approved Appraiser means a reputable firm of independent professional appraisers as may be selected from time to time by the Borrowers and approved and engaged by the Administrative Agent, which approval shall not be unreasonably withheld; provided that, after the occurrence and during the continuance of an Event of Default, the selection of the appraiser may be made by the Administrative Agent in its sole discretion without any Borrower consent."
"4.5Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means (e.g., pdf or tiff) shall be effective as delivery of a manually executed counterpart of this Amendment."
"(b) The execution, delivery and performance by such Loan Party of the Amendment, and the consummation of the transactions contemplated thereby taking place on or prior to the Amendment Effective Date (including the Term Loan Transactions), are within such Loan Partys corporate or other powers, have been duly authorized by all necessary corporate or other organizational action and do not (a)contravene the terms of any of such Persons Organizational Documents, or (b)violate any Law; except with respect to any violation referred to in this clause (b)to the extent that such violation could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect."
"AMENDED CREDIT AGREEMENT (this Agreement), dated as of October15, 2014, among JELD-WEN Holding, inc., an Oregon corporation (Holdings), as a U.S. Guarantor, JELD-WEN, inc., an Oregon corporation (the Company), as borrower representative (in such capacity, the Borrower Representative), the Company and each Subsidiary of the Company party hereto from time to time as a U.S. Borrower, each Subsidiary of the Company party hereto from time to time as a U.S. Subsidiary Guarantor, JELD-WEN of Canada, Ltd., an Ontario corporation (JW Canada), and each other Subsidiary of the Company party hereto from time to time as a Canadian Borrower, each Subsidiary of the Company party hereto from time to time as a Canadian Subsidiary Guarantor, the financial institutions, institutional investors and other entities from time to time party hereto as lenders (collectively, the Lenders), and Wells Fargo Bank, National Association, as Administrative Agent, U.S. Issuing Bank, Canadian Issuing Bank and Swingline Lender (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section1.1)."
"Capital Expenditures: for any period, with respect to any Person, the aggregate of all expenditures by such Person or any Restricted Subsidiary during such period for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that, in conformity with GAAP, are included in additions to property, plant or equipment or comparable items reflected in the consolidated statement of cash flows of the Company and the Restricted Subsidiaries."
"(d) any expenses (including non-recurring legal and professional fees, costs and expenses) or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition (including any Permitted Acquisition), disposition, recapitalization or the Incurrence of Indebtedness permitted to be Incurred by this Agreement, including a refinancing thereof, and any amendment or modification to the terms of any such transaction (in each case, whether or not successful), including such fees, expenses, costs or charges related to the Transactions, in each case, deducted (and not added back) in computing Consolidated Net Income; plus"
"(4) any net after-tax effect of gains or losses (including all fees and expenses relating thereto) attributable to business dispositions or asset dispositions or the sale or other disposition of any Capital Stock of any Person other than in the ordinary course of business, as determined in good faith by the Company, shall be excluded,"
"(5) the Net Income for such period of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting (other than a Guarantor), shall be excluded; provided, that the Consolidated Net Income of the Company and the Restricted Subsidiaries shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the Company or a Restricted Subsidiary thereof in respect of such period,"
"Contribution Indebtedness: Indebtedness of any Loan Party in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than Excluded Contributions, any Specified Equity Contribution or any such cash contributions that have been used to make a Restricted Payment) made to the capital of the Company after the Closing Date, provided that:"
"Environmental Liabilities: all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action."
"Excluded DDA: a deposit account other than a Collection DDA which satisfies one of the following: (a)any exclusive payroll, other employee benefits, trust, fiduciary, customs, insurance deposits or tax withholding accounts funded in the ordinary course of business or required by applicable law, (b)any escrow, defeasance and redemption accounts, (c)any local petty cash accounts of the Loan Parties funded in the ordinary course of business the balance of which do not aggregate more than $250,000 at any time outstanding and (d)deposit accounts and securities accounts exclusively maintained for the purpose of holding, and actually holding, only identifiable cash proceeds from Term Priority Collateral as identified by the Company to the Administrative Agent from time to time."
"Extension Amendment: an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section2.24, providing for an extension of the maturity date applicable to the Loans and/or Commitments of the Accepting Lenders and, in connection therewith, (a)a change to the Applicable Margin with respect to the Loans and/or Commitments of the Accepting Lenders and/or (b)a change to the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders."
"Federal Funds Rate: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers (or, if such day is not a Business Day, for the next preceding Business Day), as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by Wells Fargo from three federal funds brokers of recognized standing selected by it."
"If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire Test Period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of"
"Hazardous Materials means (a)substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as hazardous substances, hazardous materials, hazardous wastes, toxic substances, or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or EP toxicity, (b)oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c)any flammable substances or explosives or any radioactive materials, and (d)asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million."
"Immaterial Subsidiary: each Subsidiary designated by the Borrower Representative as an Immaterial Subsidiary from time to time so long as such Person, as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section5.1(a), (b)or (c)(or prior to delivery of the financial statements for the fiscal year of the Company ending December31, 2014, for which financial statements have been delivered pursuant to Section4.1(d)): (i)contributed less than 5% of Consolidated EBITDA for the period of four consecutive fiscal quarters then ended, and (ii)had assets with a fair market value of less than 5% of the Total Assets as of such date; provided that, if at any time the aggregate amount of Consolidated EBITDA or Total Assets attributable to all Subsidiaries that are Immaterial Subsidiaries exceeds 10% of Consolidated EBITDA for any such period or 10% of Total Assets as of the end of any such fiscal quarter, the Borrower Representative (or, in the event the Borrower Representative has failed to do so within 20 days, the Administrative Agent) shall de-designate sufficient Immaterial Subsidiaries and shall and the Borrowers shall cause such de-designated Subsidiaries to become Loan Parties hereunder."
"(3) to the extent not otherwise included, obligations described in clause (1)of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided that the amount of such Indebtedness will be the lesser of (a)the Fair Market Value of such asset at such date of determination, and (b)the amount of such Indebtedness of such other Person; and"
"Level 1 Availability Trigger Amount: at any time, the greater of (x)12.5% of the Global Loan Cap in effect at such time and (y)$25,000,000; provided upon the expiration of the Systems Update Period, the Level 1 Availability Trigger Amount shall be, at any time, the greater of (x)10.0% of the Global Loan Cap in effect at such time and (y)$20,000,000."
"Lien Waiver: an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which (i)for any Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the Administrative Agent to enter upon the premises and remove the Collateral or to use the premises for an agreed upon period of time to store or dispose of the Collateral, (ii)for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the Collateral to the Administrative Agent upon request and (iii)for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Lien of the Administrative Agent under the Loan Documents, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the Administrative Agent upon request."
"(1) pledges or deposits of cash or Cash Equivalents by such Person in connection with workmens compensation, employment or unemployment insurance and other types of social security legislation, employee source deductions, goods and services taxes, sales taxes, municipal taxes, corporate taxes and pension fund obligations, or good faith deposits, prepayments or cash pledges to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, performance and return of money bonds and other similar obligations incurred in the ordinary course of business, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, stay, customs or appeal bonds or statutory bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;"
"(c) with respect to all other matters as to a particular Lender (including the indemnification obligations arising under Section9.13 of this Agreement), (i)prior to the Commitments being terminated or reduced to zero, the percentage obtained by dividing (y)such Lenders Total Commitments, by (z)the aggregate amount of Total Commitments of all Lenders, and (ii)from and after the time that the Commitments have been terminated or reduced to zero, the Pro Rata Share most recently in effect calculated in accordance with subclause (i)above, giving effect to any subsequent assignments."
"Remedial Action: all actions taken to (a)clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b)prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c)restore or reclaim natural resources or the environment, (d)perform any pre-remedial studies, investigations, or post- remedial operation and maintenance activities, or (e)conduct any other actions with respect to Hazardous Materials required by Environmental Laws."
"Sale Leaseback Transaction: any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions the Company or any Restricted Subsidiary sells substantially all of its right, title and interest in any property and, in connection therewith, the Company or a Restricted Subsidiary acquires, leases or licenses back the right to use all or a material portion of such property."
"U.S. Dollar Equivalent: at any time, (a)with respect to any amount denominated in U.S. Dollars, such amount, and (b)with respect to any amount denominated in an Applicable Currency, the equivalent amount thereof in U.S. Dollars as determined by the Administrative Agent, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date determined by the Administrative Agent) for the purchase of U.S. Dollars with such Applicable Currency, as the case may be. Unless otherwise specified herein, the U.S.Dollar Equivalent shall be determined as of the most recent Revaluation Date. The U.S.Dollar Equivalent will be used both for determining the U.S.Dollar amount of Eligible Accounts that are payable in currencies other than U.S. Dollars and the amount of Advances and Letters of Credit extended in currencies other than U.S. Dollars. The Spot Rate for the U.S.Dollar Equivalent will be used at the date of the determination of the Borrowing Bases for both the calculation of the amount of Eligible Accounts and for the amount of Advances and Letters of Credit."
"(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i)accounting terms not defined in Section1.1 and accounting terms partly defined in Section1.1, to the extent not defined, shall have the respective meanings given to them under GAAP; (ii)the words include, includes and including shall be deemed to be followed by the phrase without limitation, (iii)the word incur shall be construed to mean incur, create, issue, assume or become liable in respect of (and the words incurred and incurrence shall have correlative meanings), (iv)the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, real property, leasehold interests and contract rights, (v)the term consolidated with respect to any Person refers to such Person consolidated with the Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate and were not a Subsidiary of such Person, (vi)references to agreements or other Contractual Obligations (including any of the Loan Documents) shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated, amended and restated or otherwise modified from time to time, and (vii)any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time."
"(g) The use of the term Appropriate immediately preceding any reference to any Advance(s), Agents Account(s), Borrower(s), Designated Account(s), Facility(ies), Lender(s), Letter(s) of Credit, Loan Party(ies), Loan Account(s), Non-Defaulting Lender(s) and Special Advance(s) shall refer only to the Advance(s), Agents Account(s), Borrower(s), Designated Account(s), Facility(ies), Lender(s), Letter(s) of Credit, Loan Party(ies), Loan Account(s), Non-Defaulting Lender(s) and Special Advance(s), as applicable, related to a particular (i.e. U.S. or Canadian) Facility, as the context may require."
"(e) Eligible Equipment. Notwithstanding anything to contrary set forth herein, Eligible Equipment shall be limited to those items of Equipment included in the calculation of the U.S. Borrowing Base on the Closing Date. From time to time after the Closing Date, the Administrative Agent may, in its sole discretion, approve certain other items of Equipment constituting ABL Priority Collateral and otherwise satisfying the criteria of Eligible Equipment to be included in the calculation of the U.S. Borrowing Base."
"(iii) Each U.S. Protective Advance and each U.S. Overadvance (each, a U.S. Special Advance) shall be deemed to be a U.S. Advance hereunder and each Canadian Protective Advance and each Canadian Overadvance (each, a Canadian Special Advance and together with the U.S. Special Advances, Special Advances). No U.S. Special Advance shall be eligible to be a LIBOR Rate Loan and no Canadian Special Advance shall be eligible to be a BA Rate Loan or a LIBOR Rate Loan. Prior to Settlement with respect to any Special Advances, all payments on the Special Advances shall be payable to the Administrative Agent solely for its own account. The Special Advances under any Facility shall be repayable on demand, shall be secured by the Liens of the Administrative Agent under the Loan Documents securing the Finance Obligations under such Facility and, (A)in the case of U.S. Special Advances, shall constitute U.S. Finance Obligations hereunder and bear interest at (x)the U.S. Base Rate if denominated in U.S. Dollars and (y)EURIBOR with an Interest Rate of one month if denominated in Euros, and (B)in the case of Canadian Special Advances, shall constitute Canadian Finance Obligations hereunder and bear"
"(i) The Administrative Agent shall request settlement (Settlement) with the Lenders on a weekly basis, or on a more frequent basis if so determined by the Administrative Agent in its sole discretion (1)on behalf of the Swingline Lender, with respect to the outstanding Swingline Loans, (2)for itself, with respect to the outstanding Special Advances, and (3)with respect to the Borrowers or their Subsidiaries payments or other amounts received, as to each by notifying the applicable Lenders by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 2:00 p.m. Local Time on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the Settlement Date). Such notice of a Settlement Date shall include a summary statement of the amount of outstanding Advances, Swingline Loans and Special Advances under each Facility for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including Section2.2(h)): (y)if the amount of the applicable Advances (including Swingline Loans and Special Advances) made by a Lender that is not a Defaulting Lender exceeds such Lenders Pro Rata Share of the Advances (including Swingline Loans and Special Advances) required to be made, or subject to participation or settlement, by such Lender as of a Settlement Date, then the Administrative Agent shall, by no later than 12:00 p.m. Local Time on the Settlement Date, transfer in immediately available funds in the Applicable Currency to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of all Advances (including Swingline Loans and Special Advances) required to be made, or subject to participation or settlement, by such Lender, and (z)if the amount of the Advances (including Swingline Loans and Special Advances) made by a Lender is less than such Lenders Pro Rata Share of the Advances (including Swingline Loans and Special Advances) required to be made, or subject to participation or settlement, by such Lender as of a Settlement Date, such Lender shall no later than 12:00 p.m. Local Time on the Settlement Date transfer in immediately available funds in the Applicable Currency to the Appropriate Agents Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Advances under any Facility (including Swingline Loans and U.S. Special Advances). Such amounts made available to the Administrative Agent under clause (z)of the immediately preceding sentence shall be applied against the amounts of the Swingline Loans or Special Advances, as"
"(b) Letter of Credit Fee. Subject to Section2.5(c), the U.S. Borrowers shall pay the Administrative Agent (for the ratable benefit of U.S. Revolving Lenders), a fee (the U.S. Letter of Credit Fee) (which fee shall be in addition to the fees, charges, commissions, and costs set forth in Section2.10(f)) that shall accrue at a per annum rate equal to the Applicable Margin for LIBOR Rate Loans times the undrawn amount of all outstanding U.S. Letters of Credit. Subject to Section2.5(c), the Canadian Borrowers shall pay the Administrative Agent (for the ratable benefit of Canadian Revolving Lenders), a fee (the Canadian Letter of Credit Fee and together with the U.S. Letter of Credit Fee, the Letter of Credit Fees) (which fee shall be in addition to the fees, charges, commissions, and costs set forth in Section2.11(f)) that shall accrue at a per annum rate equal to the Applicable Margin for BA Rate Loans times the undrawn amount of all outstanding Canadian Letters of Credit."
"2.6 Crediting Payments. The receipt of any payment item under any Facility by the Administrative Agent shall not be required to be considered a payment on account unless such payment item is a wire transfer of immediately available funds in the Applicable Currency made to the Appropriate Agents Account or unless and until such payment item is honored when presented for payment. Should any payment item not be honored when presented for payment, then the Borrowers shall be deemed not to have made such payment and interest shall be calculated accordingly. Anything to the contrary contained herein notwithstanding, any payment item shall be deemed received by the Administrative Agent only if it is received any the Appropriate Agents Account on a Business Day on or before 1:30 p.m. Local Time. If any payment item is received into any the Appropriate Agents Account on a non-Business Day or after 1:30 pm. Local Time on a Business Day (unless the Administrative Agent, in its sole discretion, elects to credit it on the date received), it shall be deemed to have been received by the Administrative Agent as of the opening of business on the immediately following Business Day."
"(iii) any action or proceeding arising out of, or in connection with, any U.S. Letter of Credit (whether administrative, judicial or in connection with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any U.S. Letter of Credit, or for the wrongful dishonor of, or honoring a presentation under, any U.S. Letter of Credit;"
"(g) The liability of the U.S. Issuing Bank (or any other U.S. Letter of Credit Related Person) under, in connection with or arising out of any U.S. Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by the U.S. Borrowers that are caused directly by the U.S. Issuing Banks gross negligence or willful misconduct in (i)honoring a presentation under a U.S. Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such U.S. Letter of Credit, (ii)failing to honor a presentation under a U.S. Letter of Credit that strictly complies with the terms and conditions of such U.S."
"claiming indemnity on demand from time to time all amounts owing under this Section2.11(f). If and to the extent that the obligations of the Borrowers under this Section2.11(f) are unenforceable for any reason, the Borrowers agree to make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit."
"(vii) any acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other Person or any breach of contract between any beneficiary and any Canadian Borrower or any of the parties to the underlying transaction to which the Canadian Letter of Credit relates;"
(xi) honor of a presentation after the expiration date of any Canadian Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by the Canadian Issuing Bank if subsequently the Canadian Issuing Bank or any court or other finder of fact determines such presentation should have been honored;
"(b) The Borrowers shall, upon demand from any member of the Lender Group, pay to such Person, the amount of (i)any loss or cost or increased cost incurred by such Person, (ii)any reduction in any amount payable to or in the effective return on the capital to such Person, (iii)any interest or any other return, including principal, foregone by such Person as a result of the introduction of, change over to or operation of the Canadian Dollar or the Euro, or (iv)any currency exchange loss that such Person sustains, in each case of clauses (i)through (iv), as a result of any payment being made by any Borrower in a currency other than that originally extended to such Borrower. A certificate of the Administrative Agent setting forth in reasonable detail the basis for determining such additional amount or amounts necessary to compensate such member of the Lender Group or shall be conclusively presumed to be correct save for manifest error."
"regulations thereunder, which might, but for the provisions of this Section2.15(b) afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its obligations under this Section2.15(b), it being the intention of each Canadian Borrower that, so long as any of the Canadian Finance Obligations hereunder remain unsatisfied, the obligations of each Canadian Borrower under this Section2.15(b) shall not be discharged except by performance and then only to the extent of such performance. The obligations of each Canadian Borrower under this Section2.15(b) shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Canadian Borrower, the Administrative Agent or any Canadian Revolving Lender."
"solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document), (ii)branch profits taxes imposed on the Administrative Agent or any Lender by the United States of America or any similar tax imposed by any other jurisdiction described in clause (i)above, (iii)United States or Canadian withholding Taxes to the extent imposed on amounts payable to any Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled at the time of designation of a new lending office (or assignment, if any) to receive additional amounts from the Loan Parties with respect to such Taxes pursuant to this paragraph (a), (iv)Taxes that are attributable to a Lenders failure to comply with the requirements of paragraph (d), (e)or (g)of this Section2.18, (v)United States federal withholding Taxes imposed by sections 1471 through 1474 of the Code as in existence on the date of this Agreement (and any amended or successor versions of such provisions that are substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder and official interpretations thereof, any agreements entered into pursuant to Section1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (FATCA), (vi)any Taxes under Part XIII of the Income Tax Act (Canada) as in existence on the date of this Agreement (and any amended or successor versions of such provisions that are substantially comparable and not materially more onerous to comply with) (the Tax Act) on, or deducted or withheld from, any payments or deemed payments to the Administrative Agent or any Lender by reason of it being a Person with whom any Loan Party does not deal at arms length for the purposes of the Tax Act at the time of making such payment or by reason of any Loan Party being obligated to make any payments to any such Person in respect of a Loan, and (vii)any Taxes on, or deducted or withheld from, any payment to the Administrative Agent or any Lender by reason of such payment (or any portion thereof) being deemed to be a dividend pursuant to subsection 214(16) of the Tax Act or deemed to have been paid pursuant to subsection 214(17) of the Tax Act (such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings, the Non-Excluded Taxes). If any Non-Excluded Taxes or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement. The Loan Parties shall indemnify the Administrative Agent and each Lender within ten Business Days after written demand therefor (which written demand shall be made no later than 60 days after the earlier of (1)the date on which the Administrative Agent or the applicable Lender, as the case may be, received written demand for payment of the applicable Non-Excluded Taxes or Other Taxes from the relevant Governmental Authority or (2)the date on which the Administrative Agent or the applicable Lender, as the case may be, paid the applicable Non-Excluded Taxes or Other Taxes; provided, that failure or delay on the part of the Administrative Agent or the applicable Lender, as the case may be, to make such written demand shall not constitute a waiver of the right of the Administrative Agent or the applicable Lender, as the case may be, to demand indemnity and reimbursement for such Non-Excluded Taxes or Other Taxes, except to the extent that such failure or delay results in prejudice to the Loan Parties), for the full amount of any Non-Excluded Taxes or Other Taxes (including Non-Excluded Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section2.18) paid by such Person and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate stating the amount of such payment or liability and setting forth in reasonable detail the calculation thereof delivered to the Borrower Representative by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest error. Statements payable by the Loan Parties pursuant to this Section2.18 shall be submitted to the Borrower Representative at the address specified under Section10.2."
"(d) The Administrative Agent and each Lender (or Assignee) that is not a United States person as defined in Section7701(a)(30) of the Code (a Non-U.S. Lender) shall deliver to the Borrower Representative and the Administrative Agent two original copies of either U.S. Internal Revenue Service Form W-8BEN-E or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section871(h) or 881(c) of the Code with respect to payments of portfolio interest, a statement substantially in the form of Exhibit E-1 and a Form W-8BEN-E, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Loan Parties under this Agreement and the other Loan Documents; provided that, in the case of a Non-U.S. Lender that is not the beneficial owner, such Non-U.S. Lender shall deliver to the Borrower Representative and the Administrative Agent two executed original copies of U.S. Internal Revenue Service Form W-8IMY, accompanied by Form W-8ECI, Form W-8BEN-E, a statement substantially in the form of Exhibit E-2 or Exhibit E-3, Form W-9, and/or other certification documents from each beneficial owner, as applicable (in each case, or any subsequent versions thereof or successors thereto); provided, further, that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming exemption from U.S. federal withholding tax under Section871(h) or 881(c) of the Code with respect to payments of portfolio interest, such Non-U.S. Lender may provide a statement substantially in the form of Exhibit E-4 on behalf of each such direct or indirect partner). The Administrative Agent and any Lender (or Assignee) that is not a Non-U.S. Lender shall deliver to the Borrower Representative and the Administrative Agent two original copies of U.S. Internal Revenue Service Form W-9, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Person claiming complete exemption from backup withholding on all payments by the Loan Parties under this Agreement and the other Loan Documents. The forms and certification referenced in the previous two sentences (the Forms) shall be delivered by the Administrative Agent and each Lender on or before the date it becomes a party to this Agreement. In addition, the Administrative Agent and each Lender shall deliver the Forms promptly upon the obsolescence or invalidity of any Forms previously delivered by the Administrative Agent and such Lender and upon the written request of the Borrower Representative or the Administrative Agent. The Administrative Agent and each Lender shall promptly notify the Borrower Representative at any time it determines that it is no longer in a position to provide any previously delivered Form to the Borrower Representative (or any other form or certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph (d), the Administrative Agent and each Lender shall not be required to deliver any Form pursuant to this paragraph (d)that the Administrative Agent and such Lender is not legally able to deliver."
"(v) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section8.1(a) or 8.1(g)) shall exist on the Incremental Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Advances made thereunder)."
"3.15 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (a)there are no collective bargaining agreements covering the employees of the Loan Parties and their Domestic Subsidiaries or Multiemployer Plans covering the employees of any Loan Party or any of their Subsidiaries and (b)neither the Company nor any Restricted Subsidiary has suffered any material strikes, walkouts, work stoppages or other material labor difficulty within the five years prior to the Closing Date."
"(b) Each of the Mortgages delivered on or after the Closing Date is, or upon execution and recording will be, effective to create in favor of the Administrative Agent, for the benefit of the relevant Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties described therein and proceeds thereof, and when the Mortgages are filed in the recording offices for the applicable jurisdictions in which the Mortgaged Properties are located, each such Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Finance Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any other Person other than holders of Permitted Priority Liens. Schedule 1.1B lists, as of the Closing Date, each parcel of Material Property located in the United States and held by any Loan Party."
"(m) Patriot Act. The Administrative Agent and the Lenders (to the extent reasonably requested in writing at least 10 days prior to the Closing Date) shall have received, at least three Business Days prior to the Closing Date, all documentation and other information that the Administrative Agent reasonably determines to be required by Governmental Authorities under applicable know your customer and anti-money-laundering rules and regulations, including the Patriot Act and the Proceeds of Crime Act."
"(b) as soon as available, but in any event within 45 days after the last day of the first three fiscal quarters of each fiscal year of the Company, the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous fiscal quarter of the previous year, certified by a Responsible Officer as fairly stating in all material respects the financial position of the Company and its consolidated Subsidiaries in accordance with GAAP for the period covered thereby (subject to normal year-end audit adjustments and the absence of footnotes) and including management discussion and analysis (provided that delivery within the time periods specified above of copies of the Annual Report on Form 10-K of the Company (or any direct or indirect parent company thereof) filed with the SEC shall be deemed to satisfy the requirements of this Section5.1(a));"
"(d) With respect to any new Restricted Subsidiary that is directly owned by a Loan Party and is an Excluded Domestic Subsidiary or Foreign Subsidiary and is a Non-Guarantor Subsidiary (other than an Immaterial Subsidiary) created or acquired after the Closing Date, within 90 days (or such longer period as the Administrative Agent shall reasonably agree) after the date of such creation or acquisition (i)execute and deliver to the Administrative Agent such amendments to the U.S. Security Agreement or Canadian Security Agreement, as applicable, and, to the extent requested by the"
"(e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any such Subsidiary that is an Excluded Domestic Subsidiary or Foreign Subsidiary and any Non-Guarantor Subsidiary to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person party thereto (other than a Group Member)), within 90 days (or such longer period as the Administrative Agent shall reasonably agree) after the date of such creation or acquisition (i)execute and deliver to the Administrative Agent such amendments to this Agreement and the relevant Security Agreements as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the relevant Secured Parties, a perfected first priority security interest (subject to Permitted Priority Liens) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party (to the extent included in the definition of Collateral), (ii)deliver to the Administrative Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member and (iii)cause such new Subsidiary Guarantor to deliver to the Administrative Agent a certificate of such Subsidiary Guarantor, in form and substance reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments."
"(b) None of the Canadian Borrowers or Restricted Subsidiaries that are Canadian Subsidiaries shall, without the consent of the Administrative Agent, (i)maintain, administer, contribute or have any liability in respect of any Canadian Defined Benefit Plan, or (ii)acquire an interest in any Person if such Person sponsors, maintains, administers or contributes to, or has any liability in respect of any Canadian Defined Benefit Plan."
"(b) The Borrowers shall cause (i)not less than one physical inventory of all of its locations to be undertaken each fiscal quarter taken substantially consistent with the practices in place on the Closing Date or as otherwise are reasonably satisfactory to the Administrative Agent of the Loan Parties and (ii)periodic cycle counts of Inventory to be undertaken at each location, in each case, at least once in each 12 month period, and at the expense of the Loan Parties, in accordance with the Loan Parties usual business practices, conducted using methodology routinely used by the Loan Parties in their ordinary course of business with respect to such Inventory counts or as otherwise consistent with standard and customary business practices, and shall post such results to the Loan Parties stock ledgers and general ledgers, as applicable. During the Systems Update Period, the Administrative Agent will be permitted to oversee such physical inventory counts as it deems appropriate in its Permitted Discretion and the Borrowers shall be responsible for all reasonable expenses incurred in connection therewith."
"(i) U.S. Facility. At all times during a Cash Dominion Period (including the first and last day thereof), all amounts in the U.S. Collection DDAs shall be remitted daily to the U.S. Agents Account and shall be applied by the Administrative Agent on a daily basis to the U.S. Finance Obligations outstanding and thereafter to the U.S. Borrowers (to be wired to the U.S. Designated Account) or such other Person entitled thereto under applicable law."
"Holdings and the other Loan Parties hereby jointly and severally agree that, until all Commitments have been terminated and the principal of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan Document shall have been paid in full (other than contingent indemnification and reimbursement obligations for which no claim has been made) and all Letters of Credit have been canceled, have expired or have been Collateralized, each of Holdings and the Company shall, and shall cause the Restricted Subsidiaries to comply with this Section6."
"(xi) Indebtedness of (a)a Restricted Subsidiary to the Company or (b)the Company or any Restricted Subsidiary to any other Restricted Subsidiary; provided, however that if a Loan Party Incurs such Indebtedness to a Restricted Subsidiary that is not a Loan Party, such Indebtedness is expressly subordinated in right of payment to the Loans or the Guarantee of such Loan Party, as the case may be, and is permitted pursuant to Section6.3; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event that results in any Restricted Subsidiary lending such Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to a Borrower or another Restricted Subsidiary) shall be deemed, in each case, to be an Incurrence of such Indebtedness;"
(xii) Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes): (1)for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding; (2)for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (3)for the purpose of fixing or hedging commodity price risk with respect to any commodity purchases;
"(xvii) the Incurrence by the Company or any of the Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary of the Company that serves to refund, Refinance, replace or defease any Indebtedness Incurred as permitted under clauses (b)(ii) (provided any such Refinancing is in compliance with the terms of the ABL-Term Intercreditor Agreement), (b)(iii) and (b)(xiv) of this Section6.2(b) or any Indebtedness Incurred to so refund or Refinance such Indebtedness including any additional Indebtedness Incurred to pay accrued and unpaid interest, fees and expenses, including any premium and defeasance costs in connection therewith (subject to the following proviso, Refinancing Indebtedness) prior to its respective maturity; provided, however that such Refinancing Indebtedness:"
(xxvii) Indebtedness owed on a short-term basis of no longer than 30 days to banks and other financial institutions Incurred in the ordinary course of business of the Company or the Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Company and the Restricted Subsidiaries;
"(vii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the payment of dividends or distributions ~~not otherwise permitted under this~~ ~~Section 6.3(b)~~ ~~~~or the purchase or other acquisition or retirement for value of any Equity Interests of Holdings or any other direct or indirect parent of any Borrower so long as either (A)Global Excess Availability on the date of such ~~distribution~~ Restricted Payment and for each day during the 30-day period immediately preceding such date is equal to or greater than the Level 3 Availability Trigger Amount on a pro forma basis giving effect to such ~~distribution~~ Restricted Payment or (B)both (x)Global Excess Availability on the date of such ~~distribution~~ Restricted Payment and for each day during the 30-day period immediately preceding such date is equal to or greater than the Level 2 Availability Trigger Amount and (y)the Fixed Charge Coverage Ratio for the applicable Test Period is not less than 1.1 to 1.0, in each case calculated on a pro forma basis giving effect to such ~~distribution~~ Restricted Payment; provided that for any single or series of related payments in excess of $10,000,000 made pursuant to this clause (vii), the Borrower Representative shall have delivered a Transaction Certificate to the Administrative Agent promptly before the making of any such ~~payment~~ Restricted Payment evidencing compliance with the foregoing;"
"(xxii) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Company or any of the Restricted Subsidiaries with current, former or future officers and employees of the Company or any of its respective Restricted Subsidiaries and the payment of compensation to officers and employees of the Company or any of its respective Restricted Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business;"
"7.4 No Subrogation. Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guarantor Obligations (other than contingent indemnification and reimbursement obligations for which no claim has been made) and the expiration and termination of the Commitments under this Agreement, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its Guarantee, whether by subrogation, right of contribution or otherwise, against any Borrower or any other Guarantor of any of the Guarantor Obligations or any security for any of the Guarantor Obligations."
"7.10 Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other relevant Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantors right of contribution shall be subject to the terms and conditions of Section7.4. The provisions of this Section7.10 shall in no respect limit the obligations and liabilities of any Guarantor to the Administrative Agent and the other relevant Secured Parties, and each Guarantor shall remain liable to the Administrative Agent and the other relevant Secured Parties for the full amount guaranteed by such Subsidiary Guarantor hereunder. Notwithstanding the foregoing, no Excluded ECP Guarantor shall have any obligations or liabilities to any Guarantor, the Administrative Agent or any other Secured Party with respect to Excluded Swap Obligations."
"(b) With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the relevant Borrower shall at such time Collateralize such Letters of Credit. Amounts held in such account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Finance Obligations of the Borrowers hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon and all amounts drawn thereunder have been reimbursed in full and all other Finance Obligations of the Borrowers hereunder and under the other Loan Documents shall have been paid in full (other than contingent indemnification and reimbursement obligations for which no claim has been made), the balance, if any, in such account shall be returned to the Borrowers (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section8.2, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrowers."
"(a) Notwithstanding anything to the contrary contained in Section8, in the event that the Company fails (or, but for the operation of this Section8.3, would fail) to comply with the requirements of Section6.1, the Company and Holdings shall have the right from (x)the date of commencement of a Financial Covenant Trigger Period at any time the Company is not in compliance with Section6.1 as reflected in the most recently delivered Compliance Certificate or (y)the date of delivery of a Compliance Certificate during a Financial Covenant Trigger Period demonstrating that the Company is not in compliance with Section6.1, in each case until ten (10)days thereafter, to issue Permitted Cure Securities for cash or otherwise receive cash equity contributions to the capital of Holdings, and, in each case, to contribute any such cash to the capital of the Company (collectively, the Cure Right), and upon the receipt by the Company of such cash (the Cure Amount) pursuant to the exercise by the Company or Holdings of such Cure Right, the Fixed Charge Coverage Ratio shall be recalculated by increasing Consolidated EBITDA solely for the purpose of measuring the Fixed Charge Coverage Ratio to determine compliance with Section6.1 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount (any Cure Amount so included in the calculation of Consolidated EBITDA, a Specified Equity Contribution)."
"(b) Collateral Agent. The Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders (including in its capacities as a potential Bank Product Provider) and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Banks for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Finance Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as collateral agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section9 and Section10, as though such co-agents, sub-agents and attorneys-in-fact were the collateral agent under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by the Administrative Agent or any of its co-agents, sub-agents or attorneys-in-fact shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against the Borrowers or any other Loan Party or any other obligor under any of the Loan Documents, any Bank Product Agreement (including, in each case, the exercise of any right of setoff, rights on account of any bankers lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of the Borrowers or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section363 of the Bankruptcy Code or any other Debtor Relief Laws, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities"
"(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrowers or any of their Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;"
"(d) shall not be liable for any action taken or not taken by it (i)with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section10.1 and Section8.2) or (ii)in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower Representative, a Lender or an Issuing Bank."
"(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent);"
"(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of (and any stated interest on) the Loans and each Lenders Letter of Credit Exposure pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers, the Issuing Banks and any Lender, at any reasonable time and from time to time upon reasonable prior notice."
"10.22 Currency Indemnity. If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any of the other Loan Documents, it becomes necessary to convert into the currency of such jurisdiction (the Judgment Currency) any amount due under this Agreement or under any of the other Loan Documents in any currency other than the Judgment Currency (the Currency Due), then conversion shall be made at the exchange rate at which the Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency at the spot selling rate on the Business Day before the day on which judgment is given. In the event that there is a change in the rate of exchange rate prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Administrative Agent of the amount due, the applicable Borrowers will, on the date of receipt by the Administrative Agent, pay such additional amounts, if any, as may be necessary to ensure that the amount received by Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Administrative Agent is the amount then due under this Agreement or such other of the Loan Documents in the Currency Due. If the amount of the Currency Due that the Administrative Agent is able to purchase is less than the amount of the Currency Due originally due to it, the applicable Loan Parties shall indemnify and save the Administrative Agent harmless from and against loss arising as a result of such deficiency. The indemnity contained herein shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any of the other Loan Documents or under any judgment or order."
"Notwithstanding anything to the contrary in this Agreement, any Accounts, Inventory, Equipment, or other Property acquired in a Permitted Acquisition or otherwise outside the Ordinary Course of Business or added to the Borrowing Base as a result of the addition of a new Borrower hereunder, in each case shall not be included in the calculation of the Borrowing Base until completion of applicable field examinations and appraisals (which shall not be included in the limits on the number of field examinations or appraisals provided in Section10.1.1) satisfactory to the Administrative Agent."
"Consolidated EBITDA means, for any period, for AFI and its Subsidiaries on a consolidated basis, an amount equal to (i)Consolidated Operating Income for such period plus (ii)the amount of depreciation and amortization expense for such period, as determined in accordance with GAAP, plus (iii)to the extent relating to the applicable period, (A)all extraordinary, nonrecurring or one- time charges, (B)pro forma cost savings for acquisitions in an aggregate amount of up to the greater of (i)$10 million or (ii)10% of Consolidated EBITDA, as yet unrealized, projected in good faith over the next twelve months, (C)all non-cash charges (other than non-cash charges relating to Collateral included in the Borrowing Base or pensions, and provided that for any such non-cash charges resulting in a cash payment or cash outlay in a subsequent period, Consolidated EBITDA will be reduced by the amount of the cash payment or cash outlay in the period made), (D)cash restructuring charges limited to $10 million in any period of four consecutive fiscal quarters, (E)cost initiative charges embedded in cost of goods sold (cash and non-cash charges) and which taken together with cost initiative charges embedded in selling, general and administrative expenses shall be limited to $5 million in any period of four consecutive fiscal quarters, (F)cost initiative charges embedded in selling, general and administrative expenses (cash and non-cash charges) and which taken together with cost initiative charges embedded in cost of goods sold shall be limited to $5 million in any period of four consecutive fiscal quarters, and (G)losses on sales of assets (cash and non-cash), minus (iv)gains on sales of assets (cash and non-cash); provided that, notwithstanding the foregoing, for purposes of calculating Consolidated EBITDA for the fiscal quarters ended June30, 2016,September30, 2016 and December31, 2016, Consolidated EBITDA for the quarters predating the Closing Date shall be as shown on Schedule 8.11."
"Dollar Equivalent means on any date, with respect to any amount denominated in Dollars, such amount in Dollars, and with respect to any stated amount in a currency other than Dollars, the amount of Dollars that the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) would be necessary to be sold on such date at the applicable Spot Rate to obtain the stated amount of the other currency."
"Eligible Machinery and Equipment means all Equipment of the Borrowers reflected in the most recent Borrowing Base Certificate, except any Equipment with respect to which any of the exclusionary criteria set forth below applies (unless the Administrative Agent in its Permitted Discretion elects to include such Equipment). No Equipment shall be Eligible Machinery and Equipment if:"
"Eligible Supplies Inventory means supplies Inventory (which, for avoidance of doubt, shall not include raw materials) owned by Borrowers that the Administrative Agent, in its Permitted Discretion, deems to be Eligible Supplies Inventory. Without limiting the foregoing, no Inventory shall be Eligible Supplies Inventory unless it (a)is replacement parts or manufacturing supplies; (b)is not held on consignment, nor subject to any deposit or down payment; (c)is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale; (d)is not slow- moving, perishable, obsolete or unmerchantable, and does not constitute returned or repossessed goods; (e)meets all standards imposed by any Governmental Authority, has not been acquired from a Person subject to any Sanction or on any specially designated nationals list maintained by OFAC, and does not constitute hazardous materials under any Environmental Law; (f)conforms with the covenants and representations herein and in the other Loan Documents; (g)is subject to the Administrative Agents duly perfected, first priority Lien, and no other Lien; (h)is within the United States (including any state or commonwealth thereof) or such other jurisdictions determined by the Administrative Agent in its Reasonable Discretion, is not In-Transit Inventory and is not consigned to any Person; (i)is not subject to any warehouse receipt or negotiable Document; (j)is not subject to any License or other arrangement that restricts Borrowers or the Administrative Agents right to dispose of such Inventory, unless the Administrative Agent has received an appropriate Lien Waiver; and (k)is not located on leased premises or in the possession of a"
"Extraordinary Expenses means all costs, expenses or advances that the Administrative Agent or any security trustee may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of AFI or any Subsidiary, including those relating to (a)any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b)any action, arbitration or other"
" | (8) | the FILO Incremental Amendment and all documentation in respect of the FILO Credit Facility shall be consistent with the foregoing and in form and substance reasonably satisfactory to the Administrative Agent and the FILO Lenders. ---|---|--- FILO Lender means any Lender or Eligible Assignee that satisfies the applicable conditions of Section2.01 and becomes a Lender under the FILO Credit Facility, if any, as may be established from time to time in accordance herewith."
"Guarantee means, as to any Person, (a)any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii)to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness, (iii)to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness , or (iv)entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or to protect such obligee against loss in respect thereof (in whole or in part), or (b)any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term Guarantee as a verb has a corresponding meaning."
"Inventory Reserve means the aggregate amount of reserves, as established by the Administrative Agent from time to time in its Permitted Discretion, to reflect factors that may negatively impact the value of Eligible Inventory and/or Eligible Supplies Inventory, including, without duplication of eligibility criteria, changes in salability, slow moving, obsolescence, shrinkage, theft, imbalance, change in composition or mix, markdowns and vendor chargebacks."
"M&E Value means the Value of Eligible Machinery and Equipment based upon the Equipment Appraisal delivered on or prior to the Closing Date, as such amount is reduced quarterly after the Closing Date amortizing on a seven year straight-line basis; provided, however, that if a new Equipment Appraisal is obtained in accordance with Section7.10, the M&E Value shall be reset to reflect the results of such appraisal and such amount shall thereafter reduce quarterly after such appraisal date amortizing quarterly on a seven year straight-line basis."
"NOLV Percentage means the net orderly liquidation value of Inventory or Equipment, expressed as a percentage of Value, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent Inventory Appraisal or Equipment Appraisal, as applicable, approved by the Administrative Agent."
"Prime Rate means the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement."
"Qualified ECP Guarantor means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an eligible contract participant under the Commodity Exchange Act and, in each case, can cause another Person to qualify as an eligible contract participant at such time under Section1a(18)(A)(v)(II) of the Commodity Exchange Act."
"Sale and Leaseback Transaction means, with respect to AFI or any Subsidiary, any arrangement, directly or indirectly, with any person whereby AFI or such Subsidiary shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred."
"Secured Parties means (a)the Administrative Agent, any L/C Issuer, the Revolving Lenders and Secured Bank Product Providers of Bank Products for the account of Loan Parties and their Subsidiaries and (b)Lenders under the FILO Credit Facility, Australian Incremental Credit Facility and/or Canadian Incremental Credit Facility, if any, and other Secured Bank Product Providers specified in any FILO Incremental Amendment, Australian Incremental Amendment or Canadian Incremental Amendment as may be in effect from time to time."
"(f) All determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP)."
"(a) Revolving Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally (and not jointly with the other Revolving Lenders), upon the terms and subject to the conditions set forth herein, agrees to make loans (each such loan, a Revolving Loan) to any of the Borrowers in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lenders Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans, (i)with regard to the Revolving Lenders collectively, the Total Revolving Outstandings shall not exceed the Line Cap, (ii)with regard to each Revolving Lender individually, such Revolving Lenders Pro Rata Share of Total Revolving Outstandings shall not exceed such Revolving Lenders Commitment. Within the limits of each Revolving Lenders Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section2.01, prepay under Section2.05, and reborrow under this Section2.01. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Borrowers shall be jointly and severally liable to pay all of the Revolving Loans. Each Revolving Loan shall be funded and repaid in Dollars. The Revolving Loans made by each Revolving Lender and interest thereon shall be evidenced by the records of the Administrative Agent and such Revolving Lender. At the request of any Revolving Lender, the Borrowers shall deliver promissory note(s) to such Revolving Lender in an amount of such Revolving Lenders Commitment."
"(iii) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of Americas prime rate used in determining the Base Rate promptly following the public announcement of such change."
"(viii) If an L/C Lender receives written notice from a Revolving Lender at least two (2)Business Days before issuance of a Letter of Credit that any L/C Condition has not been satisfied, such L/C Issuer shall have no obligation to issue the requested U.S. Letter of Credit (or any other) until such notice is withdrawn in writing by the Required Lenders or until the Required Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, an L/C Issuer shall not be deemed to have knowledge of any failure of L/C Conditions."
"(iii) Auto-Extension Letters of Credit. If a Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an Auto-Extension Letter of Credit); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the Non- Extension Notice Date) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrowers shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A)such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clauses (ii)and (iii)of Section2.03(a) or otherwise), or (B)it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1)from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2)from the Administrative Agent, any Lender or any Loan Party that one or more of the applicable conditions specified in Section5.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension."
"amount equal to the amount of such drawing. If the Applicable Borrower fails to so reimburse the applicable L/C Issuer by such time, such L/C Issuer shall promptly notify the Administrative Agent, whereupon the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the Unreimbursed Amount), and the amount of such Revolving Lenders Pro Rata Share thereof. In such event, the Applicable Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section2.02 for the principal amount of Base Rate Loans, the amount of the unutilized portion of the Aggregate Committed Amount or the conditions set forth in Section5.02. Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice."
"(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Revolving Lenders Pro Rata Share of such amount shall be solely for the account of such L/C Issuer."
"(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lenders L/C Advance in respect of such payment in accordance with Section2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lenders L/C Advance was outstanding) in Dollars and in the same funds as those received by the Administrative Agent."
"(e) Obligations Absolute. The obligation of the Applicable Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:"
"(ii) the existence of any claim, counterclaim, set-off, defense or other right that the Applicable Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;"
"(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Applicable Borrower shall pay directly to the applicable L/C Issuer for its own account, (i)a fronting fee for each commercial Letter of Credit issued by it (other than Existing Letters of Credit) equal to one-eighth of one percent (1/8%)times the amount of such commercial Letter of Credit, due and payable on the first (1st)Business Day occurring after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such commercial Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)a fronting fee with respect to each"
"(i) The Swing Line Lender at any time in its sole and absolute discretion, may, and in any event at least once every two weeks, shall request, on behalf of the Applicable Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Revolving Lenders Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, the unutilized portion of the Aggregate Committed Amount or the conditions set forth in Section5.02. The Swing Line Lender shall furnish the Applicable Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agents Office not later than 1:00 p.m. on the day specified in such Loan Notice (which shall be at least one Business Day after the receipt of such Loan Notice by the Administrative Agent), whereupon, subject to Section2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender."
"(a) Voluntary Prepayments. Voluntary prepayments may be made on any Loans hereunder selected by the Applicable Borrower on a pro rata basis to the Lenders in accordance with their respective interests therein and, except as set forth in clause (d)below, at par without premium or penalty (except, in the case of Loans other than Base Rate Loans, amounts payable pursuant to Section3.05); provided that:"
"(f) General Payment Provisions. All payments of Obligations shall be made without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes, and in immediately available funds, not later than 1:00 p.m. on the due date. Any payment after such time shall be deemed made on the next Business Day. If any payment under the Loan Documents shall be stated to be due on a day other than a Business Day, the due date shall be extended to the next Business Day and such extension of time shall be included in any computation of interest and fees. Any payment of a Eurodollar Rate Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section3.05. Any prepayment of Loans made by a Borrower shall be applied first to costs and expenses of the Administrative Agent and any security trustees (including any Extraordinary Expenses) relating to such Borrower, second to Base Rate Loans (and the Administrative Agent may, in its discretion, apply such prepayment to Swingline Loans before other Revolving Loans) of such Borrower, and then to Eurodollar"
"(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such overdue amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws."
"(ii) If any amount (other than principal of any Loan) payable by the Applicable Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such overdue amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws."
"(a) General. All payments to be made by the Borrowers shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agents Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its pro rata share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lenders Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of Interest Period, if any payment to be made by the Applicable Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be."
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
"(vii) Termination of Commitments. So long as no Event of Default shall exist immediately before or immediately after giving effect thereto, the Borrowers may, with the consent of the Administrative Agent, in its discretion, elect to terminate the commitments of the Defaulting Lender, and repay its share of outstanding Loan Obligations (and reallocate its participation interests in L/C Obligations and Swing Line Loans), on a non-pro rata basis."
"(iii) Transfers. Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default or Event of Default), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its ratable share of such Protective Advance. Each Revolving Lender shall transfer (a Transfer) the amount of such Revolving Lenders ratable share of the outstanding principal amount of the applicable Protective Advance with respect to such purchased interest and participation promptly when requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, but in any case not later than 3:00 p.m. on the Business Day notified (if notice is provided by the Administrative Agent prior to 12:00 p.m. and otherwise on the immediately following Business Day (the Transfer Date)). Transfers may occur during the existence of a Default or Event of Default and whether or not the applicable conditions precedent set forth in Section5.02 have then been satisfied. Such amounts transferred to the Administrative Agent shall be applied against the amount of the applicable Protective Advance and, together with Revolving Lenders ratable share of such Protective Advance, shall constitute Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the Administrative Agent by any Revolving Lender on such Transfer Date, the Administrative Agent shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon as specified in Section2.08. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Revolving Lender, such Revolving Lenders Pro Rata share of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance."
"(ii) Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x)the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y)the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lenders failure to comply with the provisions of Section11.06(d) relating to the maintenance of a Participant Register and (z)the Administrative Agent and the Loan Parties, as"
"(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:"
"(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS FormW-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of ExhibitH-2 or ExhibitH-3, IRS FormW-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of ExhibitH-4 on behalf of each such direct and indirect partner;"
"(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If any Recipient determines, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. At the request of the applicable Loan Party, the Recipient shall take reasonable efforts to pursue any refund of Taxes withheld or deducted from funds paid for the account such Recipient, so long as such Recipient determines, in its sole discretion, that such efforts would not result in any additional costs, expense or risks or be otherwise disadvantageous to it. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person."
"The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and the other holders of the Guaranteed Obligations, on the other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided in Section9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section9.02) for purposes of Section4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Guaranteed Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed to have become automatically due and payable), the Guaranteed Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section4.01. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the holders of the Guaranteed Obligations may exercise their remedies thereunder in accordance with the terms thereof."
"(j) Related Transactions. The Administrative Agent shall have received evidence that (i)AFI has obtained all Governmental Authority consents and other third party approvals necessary, or in the reasonable opinion of the Administrative Agent, advisable in connection with the Spin-Off, (ii)the Loan Parties have been released from all Liens and obligations under the AWI Credit Facility, and the Administrative Agent shall have received satisfactory payoff letters, lien release documentation or similar agreements which evidence the foregoing, (iii)the Closing Date Dividend will occur on the Closing Date (after initial funding of Loans) and (iv)the Spin-Off will occur on April1, 2016."
"(a) The Audited Financial Statements (i)were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)fairly present the financial condition of AFI and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii)show all material indebtedness and other liabilities, direct or contingent, of AFI and its Subsidiaries as of the date thereof, including liabilities for taxes, commitments and Indebtedness, to the extent required to be shown thereon under GAAP."
"(d) Hazardous Materials have not been transported or disposed of from the Facilities, or generated, treated, stored or disposed of at, on or under any of the Facilities or any other location, in each case by or on behalf AFI or any Subsidiary in violation of, or in a manner that would be reasonably likely to give rise to liability under, any applicable Environmental Law."
"(d) it is not subject to any offset, Lien (other than the Administrative Agents Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of Business and disclosed to the Administrative Agent or as to any amount thereof not included as an Eligible Account; and it is absolutely owing by the Account Debtor, without contingency in any respect;"
"(a) Material Domestic Subsidiaries. Cause each wholly-owned Material Domestic Subsidiary to become a Guarantor hereunder promptly, but in any event within forty-five (45)days of the Subsidiary becoming a Material Domestic Subsidiary, by execution and delivery of a Guaranty Joinder Agreement or such other documents as the Administrative Agent may deem appropriate for such purpose, together with certified copies of resolutions and Organization Documents and favorable opinions of counsel (including, among other things, due authorization, execution, delivery, and enforceability of the Guaranty Joinder Agreement and related documents), all in form, scope and substance reasonably satisfactory to the Administrative Agent."
"(e) Scope of Obligations. Subject to Section9.03, the security interests granted under this Section7.14 will ratably secure the Obligations (including obligations under Swap Contracts (other than Excluded Swap Obligations) between AFI or any of its Subsidiaries and a Lender or its affiliates to the extent permitted hereunder and obligations under Treasury Management Agreements between AFI or any of its Subsidiaries and a Lender or its affiliates)."
"(i) Records and Schedules of Accounts. Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to the Administrative Agent sales, collection, reconciliation and other reports in form reasonably satisfactory to the Administrative Agent, on such periodic basis as the Administrative Agent may request. Each Borrower shall provide to the Administrative Agent, within thirty (30)"
"(ii) Taxes. If an Account of any Borrower includes a charge for any Taxes, the Administrative Agent is authorized, in its discretion, if such Borrower has not paid such Taxes when due, to pay the amount thereof to the proper Governmental Authority for the account of such Borrower and to charge the Loan Parties therefor; provided, however, that neither the Administrative Agent nor any other Secured Party shall be liable for any Taxes that may be due from the Loan Parties or with respect to any Collateral."
"(iv) Maintenance of Dominion Accounts. Within ninety (90)days (or such longer period as the Administrative Agent may agree in its sole discretion) following the Closing Date, the Loan Parties shall establish and maintain Dominion Accounts pursuant to account control agreements, lockbox or other arrangements with Bank of America or one or more of the other Lenders; provided that lockboxes will not be required in Canada or any other jurisdiction where lockboxes are not available. The Loan Parties shall obtain a Deposit Account Control Agreement from each lockbox servicer (if applicable) and Dominion Account bank, establishing the Administrative Agents control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox (or otherwise) to a Dominion Account and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during the existence of any Cash Dominion Event, require immediate transfer of all cash receipts in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and Lenders assume no responsibility to Loan Parties for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank."
"(iii) Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any Inventory on consignment or approval except in the Ordinary Course of Business and disclosed to the Administrative Agent in writing (with such further information as the Administrative Agent may reasonably request), and shall take all steps to assure that all Inventory is produced in accordance with the FLSA and otherwise in all material respects with Applicable Law. No Borrower shall sell any Inventory on consignment or approval or any other basis under which the customer may return or require a Borrower to repurchase such Inventory except in the Ordinary Course of Business. Borrowers shall use, store and maintain all Inventory with reasonable care, in accordance with applicable standards of any insurance and in conformity in all material respects with all Applicable Law, and shall make current rent payments (within applicable grace periods provided for in leases) at all locations where any material Collateral is located."
"(ii) Certain Organizational Changes. No Loan Party may change its name or other organizational number, form or jurisdiction of organization without at least 15 days prior written notice to the Administrative Agent (or such lesser period as Agent may agree) and taking such actions (including entering into supplemental documentation) as the Administrative Agent may reasonably request to maintain the perfection and priority of its security interest in the Collateral."
"(c) intercompany Indebtedness among AFI and its Subsidiaries to the extent permitted under Section8.02; provided that, if secured, any such Indebtedness shall be expressly subordinated in right of payment to the Obligations, and if evidenced by an intercompany note, such note shall be pledged to the Collateral Agent to secure the Obligations;"
"(d) obligations (contingent or otherwise) of AFI or any Subsidiary existing or arising under any Swap Contract, provided that (i)such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a market view and (ii)such Swap Contract is not for speculative purposes;"
"Section8.11 Financial Covenant. Permit the Fixed Charge Coverage Ratio for each trailing four quarter period to be less than 1.0 to 1.0 while a Financial Covenant Trigger Period is in effect, measured for the most recent period for which financial statements were delivered hereunder prior to the Financial Covenant Trigger Period and each period ending thereafter until the Financial Covenant Trigger Period is no longer in effect."
"(c) require Loan Parties to Cash Collateralize L/C Obligations, Secured Bank Product Obligations and other Obligations that are contingent or not yet due and payable, and, if Loan Parties fail promptly to deposit such Cash Collateral, the Administrative Agent may (and shall upon the direction of Required Lenders) advance the required Cash Collateral as Revolving Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section5.02 are satisfied); and"
"(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity."
"Section10.11 Swap Contracts and Treasury Management Agreements. No Lender or any Affiliate of a Lender that is party to any Swap Contract or any Treasury Management Agreement permitted hereunder that obtains the benefits of Section9.03 or any Collateral by virtue of the provisions hereof or of any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Swap Contracts and Treasury Management Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Lender or Affiliate of a Lender that is party to such Swap Contract or such Treasury Management Agreement, as the case may be. The Lenders irrevocably authorize the Administrative Agent and the Collateral Agent, in each case at its option and in its discretion, to secure obligations under Swap Contracts and Treasury Management Agreements between a Subsidiary that is not a Loan Party and a Lender or its Affiliate with the Collateral, to the same extent as if such obligations were Obligations."
"(C) release all or substantially all of the Collateral, or release all or substantially all of the Guarantors from their guaranty obligations, except as expressly provided herein or in the other Loan Documents, or otherwise appropriate in connection with transactions permitted hereunder, provided that it is understood and agreed that additional tranches or additional extensions of credit established pursuant to the terms of this Agreement may be equally and ratably secured (or secured on a junior basis) by the Collateral securing the loans and obligations hereunder;"
"(F) increase the Commitment of such Lender hereunder; provided that in no event shall an amendment, modification, termination, waiver or consent with respect to any mandatory prepayment, condition precedent, covenant, Default or Event of Default be considered an increase in Commitments and that an increase in the available portion of any Commitment of any Lender or any rescission of the acceleration of the Loans shall not constitute an increase in Commitments;"
"Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section9.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a)the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b)the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c)any Lender from exercising setoff rights in accordance with Section11.08 (subject to the terms of Section2.13), or (d)any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i)the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section9.02 and (ii)in addition to the matters set forth in clauses (b), (c)and (d)of the preceding proviso and subject to Section2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders."
"(f) Survival. The agreements in this Section and the indemnity provisions of Section11.02(e) shall survive the resignation of the Administrative Agent, the Collateral Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Commitments hereunder and the repayment, satisfaction or discharge of all the other Obligations."
"To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b)each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b)of the preceding sentence shall survive payment in full of the Obligations and the termination of this Agreement."
"(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that (in each case with respect to any facility) any such assignment shall be subject to the following conditions:"
"demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (y)the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. If any payment by or on behalf of any Borrower or Borrowers is made to the Administrative Agent, any L/C Issuer, or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises a right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to any Person, then to the extent of such recovery, the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred."
"Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the Maximum Rate). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b)exclude voluntary prepayments and the effects thereof, and (c)amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder."
"hereunder, unless, in the case of clause (i)above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenders good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b)has notified DW Animation or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lenders good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c)has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding L/Cs under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)upon such Credit Partys receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d)has become the subject of a Bankruptcy Event or (e)has become the subject of a Bail-In Action."
"(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or"
It is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the Existing Restated Credit Agreement or evidence repayment of any such obligations and liabilities (except as expressly provided herein) and that this Agreement amend and restate in its entirety the Existing Restated Credit Agreement and re-evidence the obligations of Borrower outstanding thereunder;
"Asset Sale means any Disposition, whether in a single transaction or a series of related transactions, of property or assets of Parent Guarantor or its Subsidiaries, including any Disposition by means of a merger, consolidation or similar transaction, provided that Asset Sale shall not include (a) any single transaction or series of related transactions that involves assets having a fair market value or that results in generating Net Cash Proceeds, in either case, of less than $2,000,000, (b) any Disposition of inventory in the ordinary course of business, and (c) any Disposition of damaged, worn-out or obsolete assets in the ordinary course of business."
Cash means all cash in Dollars at any time and from time to time deposited in the Collateral Account to the extent that (a) it is not being used to satisfy any margin requirements (other than in connection with this Agreement) and (b) it is not subject to any Liens other than Permitted Liens.
"Extraordinary Proceeds Event means any (i) Asset Sale, (ii) incurrence of Debt by Parent Guarantor or its Subsidiaries (provided that Extraordinary Proceeds Event shall not include the incurrence of any Debt permitted by Section 8(d) of the Guaranty Agreement), (iii) consummation of any transaction (whether or not constituting an incurrence of Debt) relating to any Specified Property (or any Subsidiary of Parent Guarantor that owns such property) resulting in proceeds from the monetization of cash flows or receivables, including any sale of receivables, securitization of receivables, or similar transaction, and (iv) with respect to any joint venture formed by Borrower or any Affiliate thereof involving wood pellet or wood fiber operations, payments of Cash by such joint venture (a) in consideration of the sale, contribution or other transfer of assets or property of Borrower or such Affiliate to the joint venture or (b) utilizing, directly or indirectly, the proceeds of any incurrence of Debt."
"Net Cash Proceeds means the aggregate Cash proceeds and Cash Equivalents received by Borrower or any Affiliate in respect of any Disposition, incurrence of Debt or other transaction (including any Cash or Cash Equivalents received upon the sale or other disposition of any non-Cash consideration received in any Asset Sale), net of (1) the direct costs relating to such transaction or incurred as a result thereof, including legal, accounting and investment banking fees, sales commissions and brokerage, consultant and other customary fees and expenses actually incurred in connection therewith, (2) taxes paid or payable as a result thereof after taking into account any available tax credits or deductions and any tax- sharing arrangements, and (3) in the case of a Disposition, any reserve for adjustment in respect of the sale price of an asset established in accordance with GAAP."
"Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment."
"(i) Each such Prepayment Offer shall remain open for a period of at least twenty (20) Business Days following its commencement (the Prepayment Offer Period) and shall state (A) in the case of an Extraordinary Proceeds Event, in reasonable detail the nature and amount of the Extraordinary Proceeds therefrom and the date of receipt thereof by Borrower or any Affiliate thereof, (B) that the Prepayment Offer is being made pursuant to this Section 2.05(c) and the Prepayment Offer Period, including the time and date the Prepayment Offer will terminate (the Prepayment Offer Termination Date), (C) that any Lender electing to have any Loans prepaid pursuant to the Prepayment Offer shall be required to notify Borrower and Administrative Agent on or before the Prepayment Offer Termination Date and (D) that any Lender shall be entitled to withdraw its election if Administrative Agent receives, not later than the Business Day"
"(ii) Such prepayment shall be made to each Lender electing to have its Loans prepaid in accordance with clause (i) above, in the case of a Qualifying IPO, no later than 365 days after the date of such Qualifying IPO, and in the case of an Extraordinary Proceeds Event, no later than five (5) Business Days after the Prepayment Offer Termination Date.Such prepayment shall be made without premium or penalty, in all cases.For the avoidance of doubt, Borrowers failure to comply with this paragraph shall not relieve it of any obligation to make any such prepayment."
"(a) Agency Fee.Borrower shall pay an annual agency fee of $50,000 (the Agency Fee) to Administrative Agent for its own account. The annual Agency Fee shall be paid in immediately available funds on each anniversary of the Original Closing Date until the earlier of (i) the Stated Maturity Date or (ii) the date on which the Loans are fully prepaid pursuant to Section 2.05.The Agency Fee shall not be subject to reduction by way of set-off or counterclaim and shall be fully earned when paid and shall not be refundable for any reason whatsoever."
"below that which such Lender or such Lenders holding company could have achieved but for such Change in Law (taking into consideration such Lenders policies and the policies of such Lenders holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lenders holding company for any such reduction suffered."
"(c) Each Lender Party agrees not to pledge, repledge, hypothecate, rehypothecate, sell, assign, invest, lend, use, commingle or otherwise transfer for hedging, financing or other related activities (including without limitation, pursuant to repurchase transactions) any Collateral Shares; provided that the foregoing shall not restrict (i) any Lender Partys rights to assign, sell participations in or pledge the Obligations and the Collateral as permitted in Section 8.06 hereof or (ii) any Lender Partys rights and remedies after the occurrence and during the continuance of an Event of Default."
"(c) All fees and expenses required to be paid to the Administrative Agent and the Lenders on or before the Second Restatement Date, including, without limitation, the Agency Fee and reasonable fees and expenses of counsel to Administrative Agent and Lenders incurred on or prior to the Second Restatement Date and unpaid as of such date, shall have been paid."
"(u) All written information provided with respect to Borrower and its Affiliates by or on behalf of Borrower to Administrative Agent or any Lender in connection with the negotiation, execution and delivery of this Agreement and the other Loan Documents or the transactions contemplated hereby and thereby including, but not limited to, any financial statements of Borrower and its Subsidiaries provided to Administrative Agent, was or will be, on or as of the applicable date of provision thereof, when taken as a whole, complete and correct in all material respects and did not (or will not) contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the time and circumstances under which such statements were made."
"(w) All licenses, permits, approvals, concessions or other authorizations necessary to the conduct of the business of Borrower have been duly obtained and are in full force and effect, except where the failure to obtain and maintain any of the foregoing could not reasonably be expected to result in a Material Adverse Effect.There are no restrictions or requirements which limit Borrowers ability to lawfully conduct its business or perform its obligations under this Agreement or any other Loan Document."
"(e) No New Business.Engage in any activity other than (i) holding the Underlying Equity, and activities incidental thereto or otherwise contemplated herein, (ii) performing its obligations under the Loan Documents and the transactions contemplated hereby or thereby and (iii) entering into and performing its obligations under any transaction constituting a Permitted Transaction. Borrower will remain principally engaged in the business described in the Constituent Documents delivered to Administrative Agent prior to the Second Restatement Date and shall not, directly or indirectly, engage in any business other than as described in such Constituent Documents."
"(e) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (or in any respect with respect to any such representation and warranty that is qualified as to materiality, Material Adverse Effect or similar language) when made or deemed made; or"
"(h) (i) any Group Entity becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any Group Entity and is not released, vacated or fully bonded within 60 days after its issue or levy; (iii) any Group Entity institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; (iv) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of any Group Entity and the appointment continues undischarged or unstayed for sixty (60) calendar days; (v) any proceeding under any Debtor Relief Law relating to any Group Entity or to all or any material part of its property is instituted without the consent of such Group Entity and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or (vi) any Group Entity shall take any action to authorize any of the actions set forth above in this Section 6.01(h); or"
"of its own gross negligence or willful misconduct as determined by a final, nonappealable judgment of a court of competent jurisdiction.Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to Administrative Agent by Borrower or a Lender."
"Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms, conditions, or provisions set forth herein or in any of the other Loan Documents, or as to the use of the proceeds of the Loans, or as to the existence or possible existence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent."
"hereunder and under the other Loan Documents (except that if any Collateral is then held by Administrative Agent on behalf of Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender directly, until such time as Required Lenders appoint a successor Administrative Agent as provided for above in this Section, and the retiring Administrative Agent shall take such actions as may be necessary or appropriate to transfer all Collateral held by it to the successor Administrative Agent.Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).After the retiring Administrative Agents resignation hereunder and under the other Loan Documents, the provisions of this Article VII and Section 8.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent."
"8.01 Amendments, Etc.No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing and signed by Required Lenders, the applicable Lender Party and the applicable Loan Party, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:"
"if to any other Lender, to it at its address (or telecopier number) set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto. Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).Notices and other communications delivered through electronic communications to the extent provided in Subsection (b) below, shall be effective as provided in such Subsection (b)."
"Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgment from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written acknowledgment), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor."
"(c) Change of Address, Etc.Each of the Loan Parties and Administrative Agent may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.Each Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to Borrower and Administrative Agent.In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender."
"Agent (if required) and Borrower (if required) to such assignment and any applicable tax forms, Administrative Agent shall accept such Assignment and Assumption and promptly record the information contained therein in the Register.No assignment by a Lender shall be effective unless it has been recorded in the Register as provided in this subsection (d)."
"(f) Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural person or Borrower or any of Borrowers Affiliates (including Issuer)) (each, a Participant) in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitment or the Loans owing to it); provided that (i) such Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, Administrative Agent, and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement."
"(i) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto."
"(c) Waiver of Venue.Borrower irrevocably and unconditionally waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Subsection (b) of this Section.Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court."
"(e) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.07(e)."
"3. General Provisions.This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York without giving effect to its conflict of laws provisions other than Section 5-1401 of the New York General Obligations Law."
"Pursuant to the provisions of Section 2.08 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code."
"Section 4.1. Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect. Borrower and Guarantors agree that the Credit Agreement, as amended hereby, and the other Loan Documents shall continue to be legal, valid, binding obligations of Borrower and Guarantors, enforceable against Borrower and Guarantors in accordance with their respective terms."
"""Educational Agency"" means any person, entity or organization, whether governmental, government chartered, private or quasi-private, that engages in granting or withholding Educational Approvals for, administers financial assistance to or for students of, or otherwise regulates private post- secondary schools, including without limitation, the DOE, any state educational department or agency, any guaranty agency, and any entity or organization that is recognized as an accrediting agency by the DOE which engages in granting or withholding accreditation or similar approval for private post-secondary schools, in accordance with standards relating to the performance, operation, financial condition and/or educational quality of such schools."
"""Material Adverse Effect"" means a material adverse effect on (i) the business, assets, operations or condition, financial or otherwise, of the Borrower, (ii) the ability of the Borrower to perform any of its obligations under any Loan Document or (iii) the rights of or benefits available to the Bank under any Loan Document."
"""Organizational Documents"" means as to any Person which is (i) a corporation, the certificate or articles of incorporation and bylaws of such Person, (ii) a limited liability company, the certificate of formation or articles of organization and the limited liability company agreement or operating agreement or other similar agreement of such Person, (iii) a partnership, the partnership agreement or similar agreement of such Person, or (iv) any other form of entity or organization, the organizational documents analogous to the foregoing."
"""Solvent"" shall mean, with respect to any Person on a particular date, that on such date (a) the fair value of the Property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's Property would constitute unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that would reasonably be expected to become an actual or matured liability."
"(e) The Bank shall have received a certificate from the secretary or executive officer of the Borrower (i) attaching a true and complete copy of the resolutions of its Managing Person and of all documents evidencing all necessary action (in form and substance satisfactory to the Bank) taken by it to authorize the Loan Documents to which it is a party and the transactions contemplated thereby, (ii) attaching a true and complete copy of its Organizational Documents, (iii) setting forth the incumbency of its officer or officers or other analogous counterpart who may sign the Loan Documents, including therein a signature specimen of such officer or officers, and (iv) attaching a recently dated certificate of good standing (or the equivalent) issued by the secretary of state (or the equivalent Governmental Authority) of its jurisdiction of organization and each jurisdiction in which it is qualified to do business as a foreign corporation."
"(b) In the event that any draws upon any outstanding Letters of Credit, all accrued and unpaid interest thereon and all other amounts owing under the Loan Documents shall have been declared due and payable pursuant to the provisions of Section 8.2(a), the Bank may: (i) immediately withdraw the amount of any draws upon any outstanding Letters of Credit all accrued and unpaid interest thereon and all other amounts owing under the Loan Documents from the Cash Collateral Account; (ii) enforce its rights as the holder of the Note by suit in equity, action at law and/or other appropriate proceedings, whether for payment or the specific performance of any covenant or agreement contained in the Loan Documents; and (iii) exercise any and all rights and remedies provided to the Bank by the Loan Documents and applicable law. Except as otherwise expressly provided in the Loan Documents, the Borrower expressly waives presentment, demand, protest and all other notices of any kind in connection with the Loan Documents. The Borrower hereby further expressly waives and covenants not to assert any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force which might delay, prevent or otherwise impede the performance or enforcement of any Loan Document."
"All of the Bank's rights and remedies not only under the provisions of this Agreement but also under any other agreement or transaction shall be cumulative and not alternative or exclusive, and may be exercised by the Bank at such time or times and in such order of preference as the Bank in its sole discretion may determine."
"In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in goodfaith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions."
"|  | 2.75 to 1.00 (c) Unrestricted Cash. The Borrower and the Restricted Subsidiaries will maintain, as of the last day of each fiscal quarter, Unrestricted Cash of not less than the greater of (i)$400,000,000 and (ii)100% of the amount of the total Commitment; provided that no less than 50% of such required Unrestricted Cash shall be held in accounts with Lenders or their Affiliates."
"SECTION 3. Conditions. This Amendment Agreement shall bind the parties hereto pursuant to its terms on the date the Administrative Agent (or its counsel) shall have received from the Required Lenders, the Borrower and the other Loan Parties, a counterpart of this Amendment Agreement signed on behalf of such Person; provided that Section2 of this Amendment Agreement shall not be operative until the date (such date, if any, the Amendment Effective Date) on which each of the following conditions has been satisfied (provided that if such conditions are not satisfied on or prior to May16, 2016, this Amendment Agreement shall terminate and cease to have any effect):"
"Section4.2. Authorization; Validity. The execution, delivery and performance by the Borrower of this Amendment Agreement have been duly authorized by all necessary corporate and, if required, stockholder action. This Amendment Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law."
"THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND ADDITIONAL TERM LOAN AGREEMENT, dated as of May 20, 2016 (this Agreement) is entered into among Dycom Industries, Inc., a Florida corporation (the Borrower), the Guarantors, the Lenders party hereto and Bank of America, N.A., as Administrative Agent. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below)."
"Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:"
"A.The Borrower, the Lenders, the Issuing Lender, and the Administrative Agent have entered into the Third Amended and Restated Credit Agreement dated as of June 11, 2014, as amended by Amendment No. 1 to Third Amended and Restated Credit Agreement (as so amended and as further amended, supplemented or otherwise modified, the Credit Agreement)."
"(a) Borrowing Base. As of the Second Amendment Effective Date, the Administrative Agent and the Lenders have set and the Borrower has acknowledged the Borrowing Base as $130,000,000. Such Borrowing Base shall remain in effect until the next redetermination of the Borrowing Base made pursuant to this Section 2.02 or Section 6.04(b). The Borrowing Base shall be determined in accordance with the standards set forth in Section 2.02(e) and is subject to reduction or periodic redetermination pursuant to Sections 2.02(b), 2.02(c), and 2.02(d)."
"(i) On October 1, 2016, the Borrowing Base shall be automatically reduced to $120,000,000 unless (A) the Borrowing Base has already been redetermined to an amount less than or equal to $120,000,000 on or prior to such date or (B) the Borrowing Base determined pursuant to the Fall 2016 Scheduled Redetermination has become effective on or prior to such date."
"(a) the representations and warranties set forth in the Credit Agreement, the Guaranties and in the other Loan Documents are true and correct in all material respects as of the date of this Agreement (except to the extent such representations and warranties relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that such materiality qualifier shall not apply if such representation or warranty is already subject to a materiality qualifier in the Credit Agreement or such other Loan Document;"
"Beginning at a concrete monument found in the west line of a 14,507.12 acre tract of land conveyed to Marie Welder Ford by Deed recorded in Volume 237, Page 487 of the Deed Records of San Patricio County, Texas; the west line of Section 34 of said Eliza H. Welder Ranch Subdivision, at the northeast corner of a 2,800.07 acre tract of land conveyed to P. W. Robinson by Deed recorded in Volume 237, Page 184 of the Deed Records of San Patricio County, Texas; for the northerly southeast corner of said 5794.93 acre tract and the northerly southeast corner of this tract;"
"Thence S 00 25' 59"" E along the west line of said Section 33, the west line of said 14,507.12 acre tract, the east line of said Section 24, the east line of said 5794.93 acre tract, and the east line of this tract, at 2,335.46 feet pass a 5/8"" iron rod found for a line marker, in all a distance of 5,281.11 feet to a concrete monument found at the common corner of Sections 23, 24, 33, and 34, for an angle corner of this tract;"
"Entire Agreement. This Amendment constitutes a Loan Document and, together with all other Loan Documents (collectively, the Relevant Documents), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to any other party in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with 10.01 of the Credit Agreement. | ---|--- 5."
"A) The Lender and Borrower are parties to a loan agreement dated April 9, 2012, as amended by the First Amendment and Waiver to the Credit Agreement dated April 15, 2013, the Second Amendment to the Credit Agreement dated May 21, 2013, the Third Amendment to Credit Agreement dated September 9, 2013, the Fourth Amendment and Waiver to Credit Agreement dated May 20, 2014, the Fifth Amendment Agreement dated October 20, 2014 and the Sixth Amendment and Waiver Agreement dated June 4, 2015 (and as further amended from time to time, the Existing Loan Agreement), which Existing Loan Agreement secured a loan facility to the Borrower in the sum of Thirty Million United States Dollars (US$30,000,000.00) and upon which stamp duty was paid in Trinidad and Tobago to cover the said sum of Thirty Million United States Dollars (US$30,000,000.00);"
"(a) If-on or before the day that is three (3)Business Days prior to the start of an Interest Period, the Lender determines (i)Dollar deposits in the amount of the Advance for a matching Interest Period are generally not available in the London interbank market or (ii)the cost to the Lender of obtaining matching Dollar deposits in the London interbank market in respect of any Loan principal balance would be in excess of LIBOR or (iii)adequate reasonable means do not exist for ascertaining LIBOR, then the Lender shall notify the Borrower in writing and on the last day of the then-existing Interest Period fund the Loan principal balance at the Alternative Rate."
"(h) Limitation on Indebtedness: At any time, incur, assume or permit any Indebtedness in an amount in excess of three million Dollars ($3,000,000), provided that, for the purposes of this Section5.1(h)Indebtedness shall not include the Loan and any Related Party Debt. For the avoidance of doubt, accounts payable by the Borrower to a shareholder of the Borrower or an affiliate of shareholder of the Borrower arising from the delivery of goods or the provision of trade services to the Borrower and payable within 180 days of the delivery of such goods or the provision of such trade services are not Indebtedness or Related Party Debt;"
"(i) Limitation on Capital Expenditures: Following the Project Completion Date, incur, make or permit capital expenditures (excluding expenditures, regardless of when incurred, related the Project Budget, including Change Orders and Project overruns), in an amount greater than one million Dollars ($1,000,000) per annum, except for the purposes of the expansion of the existing plant in Trinidad the Borrower may incur additional capital expenditures of up to US$9,000,000 for the plant expansion during fiscal years 2015 to 2016 only. For greater certainty, the maximum capital expenditure for the plant expansion is US$9,000,000;"
"Any provision of this Agreement that is held to be inoperative, unenforceable or invalid in whole or in part as to any party or in any jurisdiction shall, as to that party or jurisdiction, be inoperative, unenforceable or invalid to such extent without affecting the remaining provisions or the operation, enforceability or validity of that provision as to the other parties or in any other jurisdiction and to this end, the provisions of this Agreement are declared to be severable."
"No failure or delay by the Lender in exercising any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof. The partial or single exercise of any right, remedy, power or privilege under this Agreement shall not operate as a waiver or as an estoppel regarding any rights under the same. All rights and remedies provided in this Agreement are cumulative and may be exercised contemporaneously or"
"THIS AMENDED AND RESTATED GUARANTEE (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the Guarantee) is made and entered into effective as of this  day of , 2016 by the undersigned, AquaVenture Holdings LLC, a Delaware limited liability company formed on December14, 2006 (the Guarantor), in favor of and for the benefit of Lender, a banking institution organized and existing under the laws of Canada."
"(b)Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to the Borrower, the Guarantor agrees that the Lender and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including, without limitation, all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (Post Petition Interest)) before the Guarantor or any of its Subsidiaries receive payment of any Subordinated Obligations."
"Applicable Percentage means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by (i) at any time during the Availability Period in respect of such Facility, such Term Lenders Term Commitment at such time and (ii) at any time thereafter, the outstanding principal amount of such Term Lenders Term Loans at such time, (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lenders Revolving Commitment at such time, subject to adjustment as provided in Section 2.15 and (c) in respect of an Incremental Term Facility, with respect to any Incremental Term Lender at any time, the percentage (carried out to the ninth decimal place) of such Incremental Term Facility represented by the outstanding principal amount of such Incremental Term Lenders Incremental Term Loans with respect to such Incremental Term Facility at such time. If the Commitments of all of the Lenders to make Loans and the obligations of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b), in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.02(g), as applicable."
"Audited Financial Statements means the audited Consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended November 30, 2015, and the related Consolidated statements of income or operations, shareholders equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto."
"Consolidated First Lien Net Leverage Ratio means, as of any date of determination, the ratio of (a) the total of (i) the amount of all Consolidated Funded Indebtedness that is secured by a first priority security interest on any asset or property of the Borrower or any Restricted Subsidiary as of such date minus (ii) Designated Cash as of such date of determination in an aggregate amount not to exceed $165,000,000 to (b) Consolidated EBITDAP for the Measurement Period most recently ended on or prior to such date."
"Governmental Authority means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank)."
"Incremental Term Borrowing means a borrowing consisting of simultaneous Incremental Term Loans of the same Type and under the same Incremental Term Facility and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Incremental Term Lenders with respect to such Incremental Term Facility pursuant to Section 2.01(c)."
"Incremental Term Lender means each of the Persons identified as an Incremental Term Lender in an Incremental Term Loan Lender Joinder Agreement (so long as such Persons are Lenders at the time of execution of such Incremental Term Loan Lender Joinder Agreement or other Persons selected at such time by the Borrower and acceptable to the Administrative Agent (so long as such Persons would be permitted at such time by Section 11.06(b)(v) to become assignees hereunder)), together with their respective successors and assigns."
"Indebtedness means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money (including the Obligations), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations (including, without limitation, the maximum amount of Earn Out Obligations) of such Person incurred, issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six (6) months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) all Attributable Indebtedness, (f) the maximum amount of all letters of credit issued or bankers acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Disqualified Capital Stock in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (h) payment obligations of such Person under non-compete agreements, (i) the Swap Termination Value of any Swap Contract, (j) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (k) all Indebtedness of others of the types described in clauses (a) through (j) hereof secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (l) all Guarantees with respect to Indebtedness of the types specified in clauses (a) through (k) hereof of another Person, and (m) all Indebtedness of the types described in clauses (a) through (l) hereof of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer (to the extent that such Person is liable therefore) calculated based on the percentage of such Indebtedness for which such Person is liable."
"Material Contract means, with respect to the Borrower and its Restricted Subsidiaries, (a) any contract, agreement, permit or license, written or oral, of the Borrower or any of its Restricted Subsidiaries representing at least ten percent (10%) of the Consolidated revenues of the Borrower and its Restricted Subsidiaries for the most recently completed fiscal year of the Borrower for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a), or (b) any other contract, agreement, permit or license, written or oral, of the Borrower or any of its Restricted Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew in accordance with the terms thereof by any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect."
"(f) if requested by the Administrative Agent in its reasonable discretion, evidence reasonably satisfactory to the Administrative Agent that such real property, and the uses of such real property, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such real property, the permitted uses of such real property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and"
"Organization Documents means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction)."
"Outstanding Amount means (a) with respect to the Term Loans, Revolving Loans, Incremental Term Loans and Swingline Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of the Term Loans, Revolving Loans, Incremental Term Loans and Swingline Loans, as the case may be, occurring on such date, and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts."
"Overnight Rate means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, an L/C Issuer, or the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, an overnight rate determined by the Administrative Agent or an L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation."
Pension Plan means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
"Permitted Real Property Encumbrances means (a) those Liens affecting title to any Mortgaged Property listed in the applicable title policy in respect thereof (or any update thereto) and found, on the date of delivery of such title policy to the Administrative Agent in accordance with the terms of the Loan Documents, reasonably acceptable by the Administrative Agent, (b) as to any particular real property at any time, such easements, encroachments, covenants, restrictions, rights of way, minor defects, irregularities or encumbrances on title which do not, in the reasonable opinion of the Administrative Agent, materially impair such real property for the purpose for which it is held by the applicable Loan Party or owner, as the case may be, thereof, (c) municipal and zoning laws, regulations, codes and ordinances, which are not violated in any material respect by the existing improvements and the present use made by the Loan Party or owner, as the case may be, of such real property, (d) general real estate taxes and assessments not yet delinquent, (e) leases and subleases of real property; provided, that, such leases or subleases shall be on customary terms and reasonably acceptable to the Administrative Agent, and (f) such other items to which the Administrative Agent may consent in its sole discretion."
Pro Forma Compliance Certificate means a certificate of a Responsible Officer of the Borrower containing reasonably detailed calculations of the Consolidated Net Leverage Ratio and the Consolidated Interest Coverage Ratio as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b) after giving Pro Forma Effect to the applicable Specified Transaction.
"Securitization Transaction means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person."
"Swap Contract means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement."
"(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the Closing Date shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided, that, if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period."
"(E) as a condition precedent to such increase, the Borrower shall have delivered to the Administrative Agent a certificate of the Borrower dated as of the date of such increase and signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (x) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(g)(i)(E), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (y) no Default or Event of Default exists;"
"(D) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Facility from existing Lenders or other Persons acceptable to the Administrative Agent, which Lenders shall join in this Agreement as Incremental Term Lenders by executing an Incremental Term Loan Lender Joinder Agreement;"
"(E) as a condition precedent to such institution, the Borrower shall have delivered to the Administrative Agent a certificate of the Borrower dated as of the date of such institution and signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such institution, (x) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such institution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.02(g)(ii)(E), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (y) no Default or Event of Default exists;"
"(K) to the extent any of the terms of the Incremental Term Loans under such Incremental Term Facility (other than as set forth in Sections 2.02(g)(ii)(H), (I) and (J) above) are not substantially consistent with the terms of the Term Facility, such terms shall be reasonably satisfactory to the Administrative Agent; and"
"(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;"
"(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the applicable L/C Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse such L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the applicable L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (an Honor Date), the Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. In the event that (1) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(c)(i) and (2) the Dollar amount paid by the Borrower, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the Borrower agrees, as a separate and independent obligation, to indemnify the applicable L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the Unreimbursed Amount), and the amount of such Revolving Lenders Applicable Revolving Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.03 (other than the delivery of a Loan Notice). Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided, that, the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice."
"(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement or by such Letter of Credit, the transactions contemplated hereby or any agreement or instrument relating thereto, or any unrelated transaction;"
"(vi) any payment made by such L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;"
"(ii) Dispositions. The Borrower shall promptly prepay the Loans as hereinafter provided in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds received by any Loan Party or any Restricted Subsidiary from all Dispositions; provided, that, such Net Cash Proceeds shall not be required to be so applied (A) until the aggregate amount of Net Cash Proceeds derived from all such Dispositions in any fiscal year is equal to or greater than $10,000,000 and (B) if, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or promptly after the date of such Disposition), so long as no Default or Event of Default shall have occurred and be continuing at the time of such Disposition or at the time of such reinvestment, such Loan Party or such Restricted Subsidiary reinvests all or any portion of such Net Cash Proceeds in Eligible Assets within three hundred sixty five (365) days of the date of such Disposition (or to the extent it commits within such three hundred sixty five (365) day period to make such reinvestment, within one hundred eighty (180) days after such three hundred sixty five (365) day period); provided, further, that, for purposes of the foregoing clause (B), if such Net Cash Proceeds shall have not been so reinvested by the end of such period(s), such Net Cash Proceeds shall be promptly applied to prepay the Loans. Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause (v) below."
"(ii) If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit, the Swingline Sublimit or the Alternative Currency Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit, the Swingline Sublimit or the Alternative Currency Sublimit, as the case may be, shall be automatically reduced by the amount of such excess."
"(a) Term Loans. The Borrower shall repay the outstanding principal amount of the Term Loans in installments on the last Business Day of each March, June, September and December and on the Term Facility Maturity Date, in each case, in the respective amounts set forth in the table below (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05), unless accelerated sooner pursuant to Section 8.02:"
"(b) Maintenance of Records. In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error."
"(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuers, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate."
(A) Fees. No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
"(ii) If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any such required withholding or the making of all such required deductions (including such deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made."
"(d) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority, as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be."
"(n) Existing Credit Agreement. The Borrower shall have (or concurrently with the initial Credit Extensions hereunder will have) (i) repaid in full all principal and interest owing with respect to all outstanding revolving loans, swingline loans and term loans under the Existing Credit Agreement, and (ii) paid all accrued commitment fees, letter of credit fees and fronting fees owing under the Existing Credit Agreement."
"(a) The Loan Parties and the Restricted Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Loan Parties have reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(b) Anti-Corruption Laws. The Loan Parties and their Subsidiaries have conducted their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti- corruption legislation in other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws."
"(e) Other Notices. Promptly upon receipt thereof, copies of any non-routine correspondence or official notices received by any Loan Party or any Restricted Subsidiary from any Governmental Authority which regulates the operations of the Loan Parties and their Restricted Subsidiaries which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect."
"(a) Equity Interests. Cause (i) one hundred percent (100%) of the issued and outstanding Equity Interests of each Material Domestic Subsidiary (other than any Excluded Subsidiary) directly owned by any Loan Party and (ii) sixty five percent (65%) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary and each Unrestricted Subsidiary directly owned by a Loan Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Secured Parties, pursuant to the terms and conditions of the Collateral Documents, together with opinions of counsel and any filings and deliveries necessary in connection therewith to perfect the security interests therein, all in form and substance reasonably satisfactory to the Administrative Agent."
"(a) Within ninety (90) days of the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), execute and deliver to the Administrative Agent such Qualifying Control Agreements with respect to the deposit accounts and the securities accounts (other than Excluded Deposit and Securities Accounts) set forth on Schedule 3(l) of the Security Agreement, as to cause the Loan Parties to be in compliance with Section 7.19 as of such date."
"(f) (i) loans and advances to employees of the Borrower or any Restricted Subsidiary for relocation and related expenses, and (ii) loans and advances to employees of the Borrower or any Restricted Subsidiary made in the ordinary course of business; provided, that, in the case of clauses (i) and (ii), (A) such loans and advances shall comply with all applicable requirements of Law, and (B) the aggregate principal amount of all such loans and advances shall not exceed $3,000,000 at any one time outstanding;"
"(o) other Investments (other than any Acquisition) not permitted by any of the foregoing clauses of this Section 7.03; provided, that, (i) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such Investment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b) and (B) the Consolidated Net Leverage Ratio shall be less than 3.25 to 1.0, and (ii) no Default or Event of Default shall exist or would result from giving effect to such Investment."
"Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose."
"(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations arising under the Loan Documents, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or"
"(l) Subordination; Invalidity of Subordination Provisions. Any of the subordination, standstill, payover and insolvency related provisions of any of the documents governing any subordinated Indebtedness (the Subordination Provisions) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness, or (ii) the Borrower or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative Agent and the Secured Parties or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions."
"Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder."
"Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, an Arranger, a Lender or an L/C Issuer hereunder."
"Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility Termination Date."
"This Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this paragraph shall survive termination of this Guaranty."
"Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, an L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent, the L/C Issuers or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf of each of the Loan Parties."
"(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:"
"(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, each L/C Issuer and the Swingline Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, each L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such Public Lender to at all times have selected the Private Side Information or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lenders compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the Public Side Information portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws."
"EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION."
"1. The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date. Such Consolidated financial statements fairly present the financial condition, results of operations, shareholders equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes."
"[6. Attached hereto as Schedule B is a listing of (a) all applications by any Loan Party, if any, for any Intellectual Property made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (2) all issuances of registrations or letters on existing applications by any Loan Party for any Intellectual Property received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (3) all licenses relating to any Intellectual Property entered into by any Loan Party since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date).2]"
"THIS INCREMENTAL TERM LOAN LENDER JOINDER AGREEMENT dated as of [__________, ____] (this Agreement) is by and among each of the Persons identified as Incremental Term Lenders on the signature pages hereto (each, an Incremental Term Lender), Aerojet Rocketdyne Holdings, Inc., a Delaware corporation (the Borrower), the Guarantors party hereto, and Bank of America, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement."
"(c) Set forth on Schedule 3 attached hereto is a complete and accurate list as of the date hereof of the Subsidiary Guarantors (i) exact legal name, (ii) former legal names in the four (4) months prior to the date hereof, if any, (iii) jurisdiction of its incorporation or organization, as applicable, (iv) type of organization, (v) chief executive office address (and, if different, principal place of business address), (vi) U.S. federal taxpayer identification number, and (vii) organization identification number."
"Fourth Amended and Restated Credit Agreement, dated as of June 17, 2016, by and among Aerojet Rocketdyne Holdings, Inc., a Delaware corporation (the Borrower), the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swingline Lender (as amended, modified, extended, restated, replaced, or supplemented from time to time, the Credit Agreement; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement) ---|--- DATE:"
Amendment ---|---|---|---|---|---|---|---|---|---|--- | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Delivery of an executed counterpart of a signature page of this notice by fax transmission or other electronic mail transmission (e.g. pdf or tif) shall be effective as delivery of a manually executed counterpart of this notice.
"With respect to such Borrowing, conversion or continuation, the undersigned Borrower hereby represents and warrants that [(i) such request complies with the requirements of [Section 2.01(a)][Section 2.01(b)][Section 2.01(c)] of the Credit Agreement and (ii)] each of the conditions set forth in [Section 4.02 and] Section 4.03 of the Credit Agreement have been satisfied on and as of the Credit Extension Date."
"[Name of Cash Management Bank/Hedge Bank] (the Secured Party) hereby notifies you, pursuant to the terms of the Credit Agreement, that the Secured Party meets the requirements of a [Cash Management Bank] [Hedge Bank] under the terms of the Credit Agreement and is a [Cash Management Bank] [Hedge Bank] under the Credit Agreement and the other Loan Documents."
"Reference is hereby made to the Fourth Amended and Restated Credit Agreement, dated as of June 17, 2016, by and among Aerojet Rocketdyne Holdings, Inc., a Delaware corporation (the Borrower), the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swingline Lender (as amended, modified, extended, restated, replaced, or supplemented from time to time, the Credit Agreement). Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code."
"Those Liens and other encumbrances contained in that certain Agreement Granting Right to Mine Aggregates by and between Aerojet Rocketdyne, Inc. (Aerojet) and Granite Construction Company (Granite) dated on or about November 19, 2004, as amended from time to time pursuant to which Aerojet granted Granite the exclusive rights to mine and remove certain rock, sand, gravel, gold and silver from certain real property of Aerojets located in the County of Sacramento, California, including the non-exclusive right to occupy and use certain portions of the real property for such purposes subject to the terms of such agreement. ---|---|--- "
"Forbearance Period shall mean the period beginning on the Forbearance Effective Date and ending on the earliest to occur of, unless otherwise mutually agreed in writing by the Borrower and the Required Lenders (with written notice to the Administrative Agent and the Collateral Agent): (i)the termination of the Forbearance Period as a result of any Forbearance Default; (ii)11:59 p.m. (New York City time) on May31, 2016; and (iii)11:59 p.m. (New York City time) on the second Business Day"
"(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Agent), whichever of the following is applicable:"
"(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such Other Tax Certification as may be prescribed by applicable law to permit Borrower or the Agent to determine the withholding or deduction required to be made; and"
"3.1 Conditions Precedent to Initial Credit Extension. Each Lenders obligation to make the initial advance in respect of a Credit Facility is subject to the condition precedent that Agent shall consent to or shall have received, in form and substance satisfactory to Agent, such documents, and completion of such other matters, as Agent may reasonably deem necessary or appropriate, including, without limitation, all items listed on the Closing Deliveries Schedule attached hereto."
"3.4 Funding of Credit Facilities. Upon the terms and subject to the conditions set forth in this Agreement, each Lender, severally and not jointly, shall make available to Agent its Pro Rata Share of the requested Credit Extension, in lawful money of the United States of America in immediately available funds, prior to 11:00 a.m. (New York time) on the specified date for the Credit Extension. Agent shall, unless it shall have determined that one of the conditions set forth in Section3.1 or 3.2, as applicable, has not been satisfied, by 2:00 p.m. (New York time) on the specified date for the Credit Extension, credit the amounts received by it in like funds to Borrower by wire transfer to the Designated Funding Account (or to the account of Borrower in respect of the Obligations, if the Credit Extension is being made to pay an Obligation of Borrower). A Credit Extension made prior to the satisfaction of any conditions set forth in Section3.1 or 3.2 shall not constitute a waiver by Agent or Lenders of Borrowers obligation to satisfy such conditions, and any such Credit Extension made in the absence of such satisfaction shall be made in each Lenders discretion."
"(iv) Within three (3)Business Days of the occurrence of a Springing IP Lien Event, which notice shall be accompanied by a certificate from an authorized executive officer from each Borrower (A)acknowledging that the Springing IP Lien Event has occurred, (B)specifying the date on which the Springing IP Lien Event occurred, (C)certifying to and attaching true, correct and complete copies of updated schedules to the Intellectual Property Security Agreement and certifying that all Intellectual Property owned by each Borrower and registered in the United States is reflected on such schedules, and (D)acknowledging that Agent may exercise any rights that Agent may have under this Agreement with respect to the Springing IP Lien Event."
"6.11 Power of Attorney. Each of the officers of Agent is hereby irrevocably made, constituted and appointed the true and lawful attorney for each Borrower (without requiring any of them to act as such) with full power of substitution to do the following: (a)after the occurrence and during the continuance of an Event of Default pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral (in each case, so long as no Default or Event of Default has occurred, other than Permitted Liens), or any judgment based thereon, or otherwise take any action to terminate or discharge the same; (b)so long as Agent has provided not less than five (5)Business Days prior written notice to Borrower to perform the same and Borrower has failed to take such action, (i)execute in the name of any Person comprising Borrower any schedules, assignments, instruments, documents, and statements that Borrower is obligated to give Agent under this Agreement or that Agent or any Lender deems necessary to perfect or better perfect Agents security interest or Lien in any Collateral, (ii)do such other and further acts and deeds in the name of Borrower that Agent may deem necessary or desirable to enforce, protect or preserve any Collateral or its rights therein, including, but not limited to, to sign Borrowers name on any invoice or bill of lading for any Account or drafts against Account Debtors; and (iii)after the occurrence and during the continuance of an Event of Default, (A)endorse the name of any Borrower upon any and all checks, drafts, money orders, and other instruments for the payment of money that are payable to Borrower; (B)make, settle, and adjust all claims under Borrowers insurance policies; (C)take any action any Credit Party is required to take under this Agreement or any other Financing Document; (D)transfer the Collateral into the name of Agent or a third party as the Code permits; (E)exercise any rights and remedies described in this Agreement or the other Financing Documents; and (F)do such other and further acts and deeds in the name of Borrower that Agent may deem necessary or desirable to enforce its rights with regard to any Collateral."
"6.13 Post-Closing Obligations. Borrower shall, and shall cause each Credit Party to, complete each of the post-closing obligations and/or deliver to Agent each of the documents, instruments, agreements and information listed on the Post-Closing Obligations Schedule attached hereto, on or before the date set forth for each such item thereon (as the same may be extended by Agent in writing in its sole discretion), each of which shall be completed or provided in form and substance satisfactory to Agent and Lenders."
"(b) If Borrower fails to meet the Net Revenue Threshold for any Testing Date (each a Subject Testing Date), then, upon satisfaction of the Net Revenue Cure Conditions (as defined below), the Event of Default resulting from a failure to meet the Net Revenue Threshold on such Subject Testing Date shall be deemed"
"(k) Any Required Permit shall have been (i)revoked, rescinded, suspended, modified in a materially adverse manner or not renewed in the Ordinary Course of Business for a full term, or (ii)subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of such Required Permit or that could result in the Governmental Authority taking any of the actions described in clause (i)above, and such decision or such revocation, rescission, suspension, modification or non-renewal has, or could reasonably be expected to have, a Material Adverse Change;"
"(ii) apply to the Obligations (A)any balances and deposits of any Credit Party that Agent or any Lender or any Affiliate of Agent or a Lender holds or controls, or (B)any amount held or controlled by Agent or any Lender or any Affiliate of Agent or a Lender owing to or for the credit or the account of any Credit Party;"
"10.6 Application of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, (i)Borrower, for itself and the other Credit Parties, irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by Agent from or on behalf of Borrower of all or any part of the Obligations, and, as between Borrower and the Credit Parties on the one hand and Agent and Lenders on the other, Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as Agent may deem advisable notwithstanding any previous application by Agent, and (ii)unless the Agent and the Lenders shall agree otherwise, the proceeds of any sale of, or other realization upon all or any part of the Collateral shall be applied: first, to the Protective Advances; second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such amounts); third, to the principal amount of the Obligations outstanding; and fourth, to any other indebtedness or obligations of the Credit Parties owing to Agent or any Lender under the Financing Documents. Borrower shall remain fully liable for any deficiency. Any balance remaining shall be delivered to Borrower or to whoever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. Unless the Agent and the Lenders shall agree otherwise, in carrying out the foregoing, (x)amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (y)each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category."
"(d) Without limiting the generality of anything contained in this Agreement or the other Financing Documents, each Borrower agrees that if an Event of Default is continuing (i)Agent and Lenders shall not be subject to any one action or election of remedies law or rule, and (ii)all Liens and other rights, remedies or privileges provided to Agent or Lenders shall remain in full force and effect until Agent or Lenders have exhausted all remedies against the Collateral and any other properties owned by Borrower and the Financing Documents and other security instruments or agreements securing the Obligations have been foreclosed, sold and/or otherwise realized upon in satisfaction of Borrowers obligations under the Financing Documents."
"whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such Register shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice to Agent. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participants interest in the Obligations (each, a Participant Register). The entries in the Participant Registers shall be conclusive, absent manifest error. Each Participant Register shall be available for inspection by Borrower and the Agent at any reasonable time upon reasonable prior notice to the applicable Lender; provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any commitments, loans, letters of credit or its other obligations under any Financing Document) to any Person (including Borrower) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a participant register."
"(d) Notwithstanding anything to the contrary contained in this Agreement, the Credit Extensions (including any Secured Promissory Notes evidencing such Credit Extensions) are registered obligations, the right, title and interest of the Lenders and their assignees in and to such Credit Extensions shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein. This Agreement shall be construed so that the Credit Extensions are at all times maintained in registered form within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and Section5f.103-1(c) of the United States Treasury Regulations."
"(a) Borrower hereby agrees to promptly pay (i)(A)all costs and expenses of Agent (including, without limitation, the costs, expenses and reasonable fees of counsel to, and independent appraisers and consultants retained by, Agent) in connection with the examination, review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the Financing Documents, and in connection with the continued administration of the Financing Documents including (1)any amendments, modifications, consents and waivers to and/or under any and all Financing Documents, and (2)any periodic public record searches conducted by or at the request of Agent (including, without limitation, title investigations, UCC searches, fixture filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning the continued existence, organization and good standing of certain Persons), and (B)costs and expenses of Agent in connection with the performance by Agent of its rights and remedies under the Financing Documents; (ii)without limitation of the preceding clause (i), all costs and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to the Financing Documents; (iii)without limitation of the preceding clause (i), all costs and expenses of Agent in connection with (A)protecting, storing, insuring, handling, maintaining or selling any Collateral, (B)any litigation, dispute, suit or proceeding relating to any Financing Document, and (C)any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all of the Financing Documents; (iv)without limitation of the preceding clause (i), all costs and expenses of Agent in connection with Agents reservation of funds in anticipation of the funding of the Credit Extensions to be made hereunder; and (v)all costs and expenses incurred by Agent or Lenders in connection with any litigation, dispute, suit or proceeding relating to any Financing Document and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all Financing Documents, whether or not Agent or Lenders are a party thereto (provided that the fees and expenses of counsel that shall be reimbursable pursuant to this clause (v)shall in any event be limited to one primary counsel for the Agent, one separate primary counsel for the Lenders as a whole, one local counsel in each reasonably necessary jurisdiction, one specialty counsel in each reasonably necessary specialty area, and one or more additional counsel if one or more conflicts of interest arise). If Agent uses in-house counsel for any of these purposes, Borrower further agrees that the Obligations include reasonable charges for such work commensurate with the fees that would otherwise be charged by outside legal counsel selected by Agent for the work performed."
"14.7 Credit Decision; Disclosure of Information by Agent. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Credit Parties, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent- Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Financing Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower. Except for notices, reports and other documents expressly required to be furnished to the Lenders by Agent herein, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Credit Party which may come into the possession of any Agent-Related Person."
"temporarily warehouses loans for any Lender or any entity described in the preceding clause (a)and that, with respect to each of the preceding clauses (a)and (b), is administered or managed by (i)a Lender, (ii)an Affiliate of a Lender or (iii)a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender."
"Contingent Obligation means, for any Person, any direct or indirect liability, contingent or not, of that Person for (a)any indebtedness, lease, dividend, letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co-made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b)any obligations for undrawn letters of credit for the account of that Person; and (c)all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but Contingent Obligation does not include endorsements in the Ordinary Course of Business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement."
"General Intangibles means all general intangibles, as defined in the Code, with such additions to such term as may hereafter be made, and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable Law, any applications therefor, whether registered or not, any trade secret rights, including any rights to unpatented inventions, payment intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers, domain names, claims, income and other tax refunds, security and other deposits, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including, without limitation, key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind."
"set forth in (b)and (c)above, provided, however, that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon the obligors thereunder; (h)Indebtedness consisting of intercompany loans and advances made by any Credit Party to any other Credit Party, provided that (1)the obligations of the Credit Parties under such intercompany loan shall be subordinated at all times to the Obligations of the Credit Parties hereunder or under the other Financing Documents in a manner satisfactory to Agent and (2)to the extent that such Indebtedness is evidenced by a promissory note or other written instrument, Borrower shall pledge and deliver to Agent, for the benefit of itself and the Lenders, the original promissory note or instrument, as applicable, along with an endorsement in blank in form and substance satisfactory to Agent; (i)so long as there exists no Event of Default both immediately before and immediately after giving effect to any such transaction, Indebtedness existing or arising under any swap contract, provided, however, that such obligations are (or were) entered into by Borrower or an Affiliate in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person and not for purposes of speculation; (j)Indebtedness in the form of insurance premiums financed through the applicable insurance company; (k)guarantees by a Borrower or Guarantor of the obligations of any other Borrower or Guarantor arising pursuant to a lease or license by such Borrower or Guarantor, as the case may be, of real or personal property in the ordinary course of business of such Borrower or Guarantor (not including any guarantee of Indebtedness); provided, that, the Person issuing such guarantee is permitted hereunder to incur directly the obligation that is being guaranteed; and (l)unsecured Indebtedness in an amount not to exceed $1,500,000 owed to Daren Graham pursuant to that certain Confidential Settlement Agreement and General Release dated as of May8, 2015 (the Settlement Agreement Indebtedness) and (m)other unsecured Indebtedness in an aggregate principal amount not to exceed $100,000 at any one time.1"
"Permitted License means (a)any non-exclusive license of patent rights of Borrower or its Subsidiaries so long as all such Permitted Licenses are granted to third parties in the Ordinary Course of Business, do not result in a legal transfer of title to the licensed property, and have been granted in exchange for fair consideration, and (b)any exclusive license of patent rights of Borrower or its Subsidiaries so long as such Permitted Licenses do not result in a legal transfer of title to the licensed property, are exclusive solely as to discrete geographical areas outside of the United States, and have been granted in exchange for fair consideration."
"Security Documents means this Agreement, the Mortgage, the Intellectual Property Security Agreement and any other agreement, document or instrument executed concurrently herewith or at any time hereafter pursuant to which one or more Credit Parties or any other Person either (a)guarantees payment or performance of all or any portion of the Obligations, and/or (b)provides, as security for all or any portion of the Obligations, a Lien on any of its assets in favor of Agent for its own benefit and the benefit of the Lenders, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time."
"in the case of the 2016 Incremental Term A Loans, for the first seven Quarterly Payment Dates following the 2016 Increase Term Joinder Effective Date beginning with the Quarterly Payment Date occurring on or around September 30, 2016, an amount equal to 1.25% of the aggregate initial principal amounts of all 2016 Incremental Term A Loans theretofore borrowed by the Borrower pursuant to Section 2.1 and, for each Quarterly Payment Date thereafter, an amount equal to 2.50% of the aggregate initial principal amounts of all such 2016 Incremental Term A Loans (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 4.8 or as designated by Borrower in accordance with Section 4.1). The remaining unpaid principal amount of the 2016 Incremental Term A Loans and all other Obligations under or in respect"
"(b) this Joinder, and the Credit Agreement as amended hereby, constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, subject only to any limitation under Laws relating to (i) bankruptcy, insolvency, reorganization, moratorium or creditors rights generally; and (ii) general equitable principles including the discretion that a court may exercise in the granting of equitable remedies."
"; provided that, with respect to the delivery of financial statements for the year ended December 31, 2015, the information required to be delivered in accordance with this paragraph (i) may be qualified as reasonably necessary in connection with the matters set forth in the Restatement 8-K and will be delivered not later than April 25, 2016, and if so qualified, information that is not so qualified shall be delivered within two Business Days of the delivery of the 2015 Audited Financial Statements."
"(c) each of the representations and warranties made by each of the Loan Parties in or pursuant to the Loan Documents is true and correct in all material respects on and as of the date hereof as if made on the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, in all material respects as of such specific date) and in each case without duplication of any materiality qualifier therein."
"ABR: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 12 of 1%. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively."
"CATV Franchise: collectively, with respect to the Borrower and its Subsidiaries, (a) any franchise, license, permit, wire agreement or easement granted by any political jurisdiction or unit or other local, state or federal franchising authority (other than licenses, permits and easements not material to the operations of a CATV System) pursuant to which such Person has the right or license to operate a CATV System and (b) any law, regulation, ordinance, agreement or other instrument or document setting forth all or any part of the terms of any franchise, license, permit, wire agreement or easement described in clause (a) of this definition."
"Consolidated Total Debt: at any date, the aggregate principal amount of all Indebtedness (other than (x) in the case of contingent obligations of the type described in clause (f) of the definition of Indebtedness, any such obligations not constituting L/C Obligations and (y) Indebtedness incurred pursuant to Section 7.2(g)) of the Borrower and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP less the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than any nonconsensual Lien that is permitted under the Loan Documents) included in the consolidated balance sheet of the Borrower and its Subsidiaries as of such date."
"Designated Non-Cash Consideration: the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by the Borrower or one of its Subsidiaries in connection with a Disposition pursuant to Section 7.5(f) that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent at or prior to the time such Designated Non-Cash Consideration is received, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 7.5."
"Equity Interests: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all classes of membership interests in a limited liability company, any and all classes of partnership interests in a partnership and any and all other equivalent ownership interests in a Person, and any and all warrants, rights or options to purchase any of the foregoing."
"Escrow Borrower: a Non-Recourse Subsidiary or another Person that is not the Borrower or a Subsidiary, in each case, established to (i) borrow Escrow Incremental Term Loans (pending assumption of such Incremental Term Loans by the Borrower) or (ii) assume the obligations of the Borrower with respect to previously incurred Incremental Term Loans, in each case, that is designated in the applicable Incremental Activation Notice or assumption agreement as an Escrow Borrower and that is not engaged in any material operations and does not have any other material assets other than in connection therewith."
"Excluded Acquired Subsidiary: any Subsidiary described in paragraph (f) of Section 7.2 to the extent that the documentation governing the Indebtedness referred to in said paragraph prohibits (including by reason of its inability to satisfy a leverage ratio or other financial covenant condition under such Indebtedness) such Subsidiary from becoming a Subsidiary Guarantor, but only so long as such Indebtedness remains outstanding."
"Indebtedness: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) accrued expenses, (ii) any earnout or similar obligations so long as such obligations remain contingent and (iii) trade payables incurred in the ordinary course of such Persons business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Equity Interests of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of Sections 8(e) and (f) only, all obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include, without duplication, the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. Notwithstanding the foregoing, any current or future true up payment or other payments required by the terms of the Bright House Acquisition Agreement with respect to the Bright House Acquisition Transactions shall not constitute Indebtedness."
"Reinvestment Proceeds: with respect to any Allocated Proceeds received when no Event of Default has occurred and is continuing, the portion thereof which the Borrower (directly or indirectly through a Subsidiary) intends and expects to use to acquire assets useful in its business, on or prior to the earlier of (a) the date that is eighteen months from the date of receipt of such Allocated Proceeds and (b)the Business Day immediately preceding the date on which such proceeds would be required to be applied, or to be offered to be applied, to prepay, redeem or defease any Indebtedness of the Borrower or any of its Affiliates (other than Indebtedness under this Agreement) if not applied as described above (such earlier date, the Reinvestment Deadline), provided that such use will not require purchases, repurchases, redemptions or prepayments (or offers to make purchases, repurchases, redemptions or prepayments) of any other Indebtedness of the Borrower or any of its Affiliates."
"Revolving Commitment: as to any Revolving Lender, the obligation of such Lender to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed, as applicable, (a) the amount set forth opposite such Lenders name under the heading Revolving Commitment on Schedule 1.01A or (b) the amount set forth in any Assignment and Assumption to which such Lender is a party as an Assignee, in each case as the same may be changed from time to time pursuant to the terms hereof (including as a result of the establishment of any Extended Revolving Commitments)."
"Term Loan: any Term A Loan, Term E Loan, Term F Loan, Term H Loan, Term I Loan, Extended Term Loan, Replacement Term Loan or any other Incremental Term Loan; provided that no Escrow Incremental Term Loan shall be deemed to be a Term Loan outstanding hereunder until the Escrow Assumption with respect thereto shall have occurred."
"(f) For the purposes of calculating Annualized Operating Cash Flow, Annualized Pro Forma Operating Cash Flow and Consolidated Operating Cash Flow for any period (a Test Period), (i) if at any time during the period (a Pro Forma Period) commencing on the second day of such Test Period and ending on the last day of such Test Period (or, in the case of any pro forma calculation made pursuant hereto in respect of a particular transaction, ending on the date such transaction is consummated and, unless otherwise expressly provided herein, after giving effect thereto), the Borrower or any Subsidiary shall have made any Material Disposition, the Consolidated Operating Cash Flow for such Test Period shall be reduced by an amount equal to the Consolidated Operating Cash Flow (if positive) attributable to the property which is the subject of such Material Disposition for such Test Period or increased by an amount equal to the Consolidated Operating Cash Flow (if negative) attributable thereto for such Test Period; (ii) if, during such Pro Forma Period, the Borrower or any Subsidiary shall have made a Material Acquisition, the Consolidated Operating Cash Flow for such Test Period shall be calculated after giving pro forma effect thereto (including the incurrence or assumption of any Indebtedness in connection therewith) as if such Material Acquisition (and the incurrence or assumption of any such Indebtedness) occurred on the first day of such Test Period; and (iii) if, during such Pro Forma Period, any Person that subsequently became a Subsidiary or was merged with or into the Borrower or any Subsidiary during such Pro Forma Period shall have entered into any disposition or acquisition transaction that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Borrower or a Subsidiary during such Pro Forma Period and Consolidated Operating Cash Flow for such Test Period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such Test Period.For the purposes of this paragraph, pro forma calculations regarding the amount of income or earnings relating to any Material Disposition or Material Acquisition shall in each case be determined in good faith by a Responsible Officer of the Borrower. As used in this Section 1.2(f), Material Acquisition means any acquisition of property or series of related acquisitions of property that (i) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the Equity Interests of a Person and (ii) involves the payment of Consideration by the Borrower and its Subsidiaries in excess of $50,000,000; and Material Disposition means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $50,000,000."
"(c) The Term F Loans of each Lender shall mature in 20 installments following the Restatement Effective Date (each due on the last day of each calendar quarter, except for the last such installment), commencing on June 30, 2016, each of which shall be in an amount equal to (i) in the case of the first 19 such remaining installments, $3,000,000 (it being understood that, in addition to reductions resulting from optional and mandatory prepayments in accordance with Section 2.8 and Section 2.9 of this Agreement or the Existing Credit Agreement, the aggregate principal amount of amortization payable by the Borrower with respect to all Term F Loans on any such date shall be reduced proportionately as a result of any future conversion of Term F Loans to Extended Term Loans following the Restatement Effective Date and prior to the date of such payment) and (ii) in the case of the last such installment (which shall be due on the Term F Maturity Date), the remaining principal balance of such Term F Loan outstanding on such date."
"(a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a nonrefundable commitment fee through the last day of the Revolving Commitment Period for such Revolving Lenders Revolving Commitment computed at the Commitment Fee Rate for such Revolving Commitment on the average daily amount of the Available Revolving Commitment, payable quarterly in arrears on the last day of each March, June, September and December and on the Revolving Termination Date."
"(b) the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of any Class of Loans that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,"
"(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest."
"(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Eurodollar Rate hereunder; or"
"(i) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Term Lenders (other than, with respect to any Permitted Debt Exchange Offer that constitutes an offering of securities, any Lender that (A) if requested by the Borrower, is unable to certify that it is (i) a qualified institutional buyer (as defined in Rule 144A under the Securities Act), (ii) an institutional accredited investor (as defined in Rule 501 under the Securities Act) or (iii) not a U.S. person (as defined in Rule 902 under the Securities Act) or (B) is not legally permitted to own or hold securities) of each applicable Class based on their respective aggregate principal amounts of outstanding Term Loans under each such Class;"
"Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying a maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of all Classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered;"
"3.6. Obligations Absolute. The Borrowers obligations under this Section 3 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender and L/C Participant that no Issuing Lender or L/C Participant shall be responsible for, and the Borrowers Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee.No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the relevant Issuing Lender.The Borrower agrees that any action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the New York UCC, shall be binding on the Borrower and shall not result in any liability of any Issuing Lender to the Borrower."
"(c) Application.Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, Cash Collateral provided in respect of Letters of Credit or Swingline Loans shall be held and upon the occurrence and continuation of an Event of Default applied to the satisfaction of the specific Letters of Credit, Reimbursement Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for in the Loan Documents."
"3.10. Applicability of ISP and UCP.Unless otherwise expressly agreed by the relevant Issuing Lender and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit."
"4.14. Investment Company Act; Other Regulations. No Loan Party is an investment company, or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) that limits its ability to incur Indebtedness."
"4.15. Subsidiaries.As of the Restatement Effective Date and, following the Restatement Effective Date, as of the date of the most recently delivered Compliance Certificate pursuant to Section 6.2(b), (a) Schedule 4.15 (as modified by such Compliance Certificate) sets forth the name and jurisdiction of organization of each Designated Holding Company, the Borrower and each of the Borrowers Subsidiaries (except any Shell Subsidiary) and, as to each such Person, the percentage of each class of Equity Interests owned by Holdings, the Borrower and each of the Borrowers Subsidiaries, and (b) except as set forth on Schedule 4.15 (as modified by such Compliance Certificate), there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any Equity Interests of the Borrower or any of its Subsidiaries (except any Shell Subsidiary), except as created by the Loan Documents."
"(e) there has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of Holdings, the Borrower or any Subsidiary in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws;"
"Holdings and the Borrower hereby agree that, so long as the Commitmentsremain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or any Agent hereunder, each of Holdings and the Borrower shall, and shall cause each Subsidiary of the Borrower to:"
"(a) Except as, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, comply with, and ensure compliance by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with and maintain, and ensure that all tenants and subtenants obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws."
(b) (i) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary; (ii) Indebtedness of any Subsidiary of the Borrower that is not a Subsidiary Guarantor to any other Subsidiary of the Borrower that is not a Subsidiary Guarantor; and (iii) Indebtedness incurred by any Subsidiary resulting from Investments made pursuant to Section 7.7(h) in the form of intercompany loans;
"(c) (i) Guarantee Obligations incurred in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor or, if such Subsidiary is a Guarantor, obligations of the Borrower and (ii) Guarantee Obligations incurred in the ordinary course of business by any Subsidiary of the Borrower that is not a Subsidiary Guarantor of obligations of any other Subsidiary of the Borrower that is not a Subsidiary Guarantor;"
"(g) any Exchange by the Borrower and its Subsidiaries; provided that (i) on the relevant Exchange Date, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (ii) in the event that the Annualized Asset Cash Flow Amount attributable to the assets being Exchanged exceeds the annualized asset cash flow amount (determined in a manner comparable to the manner in which Annualized Asset Cash Flow Amounts are determined hereunder) of the assets received in connection with such Exchange (such excess amount, an Exchange Excess Amount), then, the Disposition of such Exchange Excess Amount"
"7.6. Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests of Holdings, the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Holdings, the Borrower or any Subsidiary (collectively, Restricted Payments), except that:"
"(g) the Borrower or any of its Subsidiaries may contribute operating assets to any Non-Recourse Subsidiary (other than an Escrow Borrower) so long as (i) such Disposition is permitted pursuant to Section 7.5(f), (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) after giving effect thereto, the Consolidated Leverage Ratio shall be equal to or lower than the Consolidated Leverage Ratio in effect immediately prior thereto and (iv) the Equity Interests received by the Borrower or any of its Subsidiaries in connection therewith shall be pledged as Collateral (either directly or through a holding company parent of such Non-Recourse Subsidiary so long as such parent is a Wholly Owned Subsidiary Guarantor);"
"(a) Make or offer to make any payment, prepayment, repurchase, purchase or redemption in respect of, or otherwise optionally or voluntarily defease or segregate funds with respect to (collectively, prepayment), any Specified Long-Term Indebtedness prior to the scheduled final maturity thereof, other than (i) the payment of scheduled interest and principal payments required to be made in cash, (ii) the prepayment of Specified Subordinated Debt with the proceeds of other Specified Long-Term Indebtedness or of Loans or with cash on hand, (iii) the prepayment of any Specified Long-Term Indebtedness with the proceeds of other Specified Long-Term Indebtedness, so long as such new Indebtedness has covenants and event of default provisions no more restrictive in any material respect than those applicable to the Indebtedness being refinanced, (iv) the prepayment of any Specified Long-Term Indebtedness with the proceeds of substantially concurrent capital contributions made to Holdings, and then contributed to the Borrower, in each case in the form of common equity, (v) the prepayment of any Specified Long-Term Indebtedness effected solely by exchanging such debt for Indebtedness of a Qualified Parent Company, and (vi) the prepayment of Specified Long-Term Indebtedness so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) Available Liquidity shall, after giving pro forma effect to such prepayment, be at least $250,000,000."
"into or performance of obligations under any customary tax sharing agreement, (iv) transactions with a Person that is an Affiliate solely as a result of the Borrowers or any Subsidiarys ownership of Equity Interests of, or other Investments in, such Person, (v) employment agreements entered into by the Borrower and its Subsidiaries in the ordinary course of business, (vi) payment of reasonable directors fees and customary indemnification and insurance arrangements in favor of directors and officers and (vii) transactions with an Escrow Borrower, including any Escrow Funding Assignment, any Escrow Assumption and the entrance into any agreements related thereto so long as the proceeds of any related Indebtedness of the assets or Equity Interest acquired therewith are promptly contributed or otherwise transferred to the Borrower or a Subsidiary promptly upon the use of such proceeds."
"(e) Holdings, the Borrower or any of its Subsidiaries shall (i) default in making any payment of any principal of any Indebtedness (including, without duplication, any Guarantee Obligation in respect of Indebtedness, but excluding the Loans) on the scheduled or original due date with respect thereto or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that, (x) a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or"
"or any substantial part of their assets or any Designated Holding Company, the Borrower or any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Designated Holding Company, the Borrower or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Designated Holding Company, the Borrower or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Designated Holding Company, the Borrower or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Designated Holding Company, the Borrower or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or"
"9.6. Non-Reliance on Agents and Other Lenders.Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender.Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates and made its own decision to make its Loans hereunder and enter into this Agreement.Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates.Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates."
"10.4. Survival of Representations and Warranties.All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder."
"(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an Assignee) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent of:"
"(A) the Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required for an assignment to (I) a Lender, an affiliate of a Lender, an Approved Fund (as defined below), other than in the case of any assignment of a Revolving Commitment, or (II) if an Event of Default under Section8.1(a) or (g) has occurred and is continuing, any other Person;"
"(A) except in the case of an assignment of the entire remaining amount of the assigning Lenders Revolving Commitments or Loans of any Class, (x) the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (as of the trade date specified in the Assignment and Assumption with respect to such assignment or, if no trade date is so specified, as of the date such Assignment and Assumption is delivered to the Administrative Agent) shall not be less than $5,000,000, in the case of the Revolving Facility ($1,000,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) or, $1,000,000 in the case of Term Loans of any Class ($250,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) and (y) the Aggregate Exposure of such assigning Lender shall not fall below $3,000,000 in the case of the Revolving Facility ($1,000,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund) or $1,000,000 in the case of in the case of Term Loans of any Class ($250,000 if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund), unless, in each case, each of the Borrower and the Administrative Agent otherwise consent provided that (1) no such consent of the Borrower shall be required if an Event of Default under Section 8.1(a) or (g) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any;"
"(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary."
"(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each of Holdings, the Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar"
"deemed to constitute one and the same instrument.Delivery of an executed signature page of this Agreement or any other document executed in connection herewith by facsimile or electronic transmission shall be effective as physical delivery of an original executed counterpart hereof, including the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent.A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent."
"10.9. Severability.Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction."
"(b) neither any Agent nor any Lender has any fiduciary relationship with or duty to Holdings or the Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Agents and Lenders, on one hand, and Holdings and the Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and"
"All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the other Loan Documents will be syndicate- level information, which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities.Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its administrative questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law, including Federal and state securities laws."
"Additional Collateral: all of the following property of the Borrower or any Subsidiary Guarantor, to the extent that a security interest in such property can be perfected by the filing of a Uniform Commercial Code financing statement: all Accounts, all Chattel Paper, all Documents, all Equipment, all Fixtures, all General Intangibles, all Instruments, all Intellectual Property, all Inventory, all Investment Property and all other property not otherwise described in this definition."
"Qualified ECP Guarantor: at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an eligible contract participant under the Commodity Exchange Act and can cause another person to qualify as an eligible contract participant at such time under 1a(18)(A)(v)(II) of the Commodity Exchange Act."
"Trademark License: any agreement, whether written or oral, providing for the grant by or to any Grantor of any right to use any Trademark, including, without limitation, any of the foregoing referred to in Schedule 5 (it being understood that oral agreements are not required to be listed on Schedule 5)."
"TWC Indenture: that certain indenture, dated as of April 9, 2007, by and among TWC, TW NY Cable Holding Inc., TWCE and the TWC Notes Trustee, as supplemented by that certain first supplemental indenture, dated as of April 9, 2007, by and among TWC, the TWC Notes Trustee and the other parties thereto."
"2.4. Amendments, etc.with respect to the Guaranteed Obligations. The Borrower and each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Borrower or any Guarantor and without notice to or further assent by the Borrower or any Guarantor, any demand for payment of any of the Guaranteed Obligations may be rescinded and any of the Guaranteed Obligations continued, and the Guaranteed Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to"
"Notwithstanding any of the other provisions set forth in any subsection of this Section 3 or any other provision of this Agreement, (i) this Agreement shall not constitute a grant of a security interest in, and the Collateral shall not include, (v) any Co-Owned TWC IP, (w) any intent-to-use trademark application to the extent and for so long as creation by a Grantor of a security interest therein would result in the loss by such Grantor of any material rights therein, until such time, if any, as a statement of use is filed and accepted, (x) any property to the extent that such grant of a security interest is prohibited by any Requirements of Law of a Governmental Authority, requires a consent not obtained of any Governmental Authority pursuant to such Requirement of Law or is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement (including any joint venture, partnership or limited liability company operating agreement, unless the same relates to a Wholly Owned Subsidiary), instrument or other document evidencing or giving rise to such property (including, without limitation, any contractual restriction applicable to any Patent or Trademark that is jointly owned by one or more Grantors, on the one hand, and any Person that is not a member of the Charter Group, on the other hand) except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable law (it being understood that, subject to the limitations set forth in this paragraph, it is the intent of the parties that the Collateral include all FCC Licenses, CATV Franchises, the economic value thereof and all Proceeds thereof), (y) any property that is subject to a purchase money security interest permitted by the Credit Agreement for so long as it is subject to such security interest or (z) any Equity Interests or other securities of any Subsidiary of the Borrower in excess of the maximum amount of such Equity Interests or securities that could be included in the Collateral without creating a requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act of 1933, as amended, for separate financial statements of such Subsidiary to be included in filings by any member of the Charter Group with the SEC (or any other governmental agency) and (ii) in no event shall more than 66% of the total outstanding Foreign Subsidiary Voting Equity Interest of any Foreign Subsidiary constitute Collateral or be required to be pledged hereunder."
"(d) Except with respect to Pledged Notes from time to time constituting an immaterial portion of the Collateral, each of the Pledged Notes constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and the implied covenant of good faith and fair dealing."
"(c) At any time and from time to time, upon the written request of the Administrative Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby and (ii) in the case of Pledged Securities, Investment Property, Letter-of-Credit Rights and any other relevant Collateral, taking any actions necessary to enable the Administrative Agent to obtain control (within the meaning of the applicable Uniform Commercial Code) with respect thereto; provided, that no account control agreements will be required unless an Event of Default is in existence."
"as the agent of the Administrative Agent and the Lenders, hold the same in trust for the Administrative Agent and the Lenders and, with respect to Pledged Stock constituting securities under and as defined in Section 8-103 of the Applicable UCC, deliver the same forthwith to the Administrative Agent in the exact form received, duly indorsed by such Grantor to the Administrative Agent, if required, together with an undated power covering such certificate duly executed in blank by such Grantor, to be held by the Administrative Agent, subject to the terms hereof, as additional collateral security for the Obligations.During the continuance of an Event of Default, after written notice from the Administrative Agent, any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any Issuer shall be paid over to the Administrative Agent to be held by it hereunder as additional collateral security for the Obligations, and in case any distribution of capital shall be made on or in respect of the Pledged Securities or any property shall be distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall be delivered to the Administrative Agent to be held by it hereunder as additional collateral security for the Obligations.If any sums of money or property so paid or distributed in respect of the Pledged Securities shall be received by such Grantor during the continuance of an Event of Default, after notice from the Administrative Agent, such Grantor shall, until such money or property is paid or delivered to the Administrative Agent, hold such money or property in trust for the Lenders, segregated from other funds of such Grantor, as additional collateral security for the Obligations."
"(b) Without the prior written consent of the Administrative Agent, such Grantor will not (i) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Pledged Securities or Proceeds thereof (except pursuant to a transaction not prohibited by the Credit Agreement), (ii) create, incur or permit to exist any Lien, or any claim of any Person with respect to, any of the Pledged Securities or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or Liens not prohibited under Section 7.3 of the Credit Agreement, (iii) enter into any agreement or undertaking restricting the right or ability of such Grantor to sell, assign or transfer any of the Pledged Stock hereunder or Proceeds thereof, or (iv) enter into any agreement or undertaking restricting, directly or indirectly, the right or ability of the Administrative Agent to sell, assign or transfer any of the Pledged Securities hereunder or Proceeds thereof (except pursuant to a transaction not prohibited by the Credit Agreement)."
"(c) Without the prior written consent of the Administrative Agent, such Grantor will not, and will not permit any Issuer that is a limited liability company or partnership, to amend such Issuers certificate of formation, certificate of limited partnership, statement of partnership existence, limited liability company agreement, partnership agreement or operating agreement to provide that any Equity Interests in any Issuer constitute a security under Section 8-103 of the Applicable UCC or the corresponding code or statute of any other applicable jurisdiction."
"(a) If the Administrative Agent shall determine to exercise its right to sell any or all of the Pledged Stock pursuant to Section 7.4, and if in the opinion of the Administrative Agent it is necessary or advisable to have the Pledged Stock, or that portion thereof to be sold, registered under the provisions of the Securities Act, the relevant Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the directors and officers of such Issuer to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts as may be, in the opinion of the Administrative Agent, necessary or advisable to register the Pledged Stock, or that portion thereof to be sold, under the provisions of the Securities Act, (ii) use its reasonable best efforts to cause the registration statement relating thereto to become effective and to remain effective for a period of one year from the date of the first public offering of the Pledged Stock, or that portion thereof to be sold, and (iii) make all amendments thereto and/or to the related prospectus which, in the opinion of the Administrative Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto. Each Grantor agrees to cause such Issuer to comply with the provisions of the securities or Blue Sky laws of any and all jurisdictions which the Administrative Agent shall designate and to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act."
"(b) The Liens securing the Obligations will be released, in whole or in part, as provided in Section 10.14 of the Credit Agreement. Upon any release of any Liens on any asset securing the Obligations in respect of Loans, Letters of Credit, interest, fees, expenses and other amounts due under the Credit Agreement, the Liens hereunder securing the Equally and Ratably Secured Notes Obligations shall be automatically released on such assets. On the Discharge Date, the Collateral securing all Obligations shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, CCOH and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Administrative Agent shall deliver to such Grantor any Collateral held by the Administrative Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination."
"9.18. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Liens on any Collateral granted to the Administrative Agent pursuant to this Agreement, and the exercise of any right or remedy by the Administrative Agent with respect to any such Collateral, are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement in effect at such time and the terms of this Agreement, the terms of Intercreditor Agreement shall govern and control. Notwithstanding anything herein to the contrary, so long as the Intercreditor Agreement is effective, any requirement hereunder to deliver any Shared Collateral (as such term is defined in the Intercreditor Agreement) or the proceeds thereof to the Administrative Agent shall be deemed satisfied by delivery of such Shared Collateral to the Applicable Authorized Representative (as such term is defined in the Intercreditor Agreement."
"(100% Unless Stated Otherwise) | | | 92. |  | Charter Fiberlink  Nebraska, LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 93. |  | Charter Fiberlink  Pennsylvania, LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 94. |  | Charter Fiberlink  Tennessee, LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 95. |  | Charter Fiberlink AR-CCVII, LLC |  | Limited liability company |  | CC VII Fiberlink, LLC | | | 96. |  | Charter Fiberlink CA-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 97. |  | Charter Fiberlink CC VIII, LLC |  | Limited liability company |  | CC VIII Operating, LLC | | | 98. |  | Charter Fiberlink CCO, LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 99. |  | Charter Fiberlink CT-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 100. |  | Charter Fiberlink LA-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 101. |  | Charter Fiberlink MA-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 102. |  | Charter Fiberlink MS-CCVI, LLC |  | Limited liability company |  | CC VI Fiberlink, LLC | | | 103. |  | Charter Fiberlink NC-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 104. |  | Charter Fiberlink NH-CCO, LLC |  | Limited liability company |  | CCO Fiberlink, LLC "
"Filing Jurisdiction | | 181. |  | Insight Kentucky Partners II, L.P. |  | Secretary of State of the State of Delaware | | 182. |  | Insight Midwest Holdings, LLC |  | Secretary of State of the State of Delaware | | 183. |  | Insight Midwest, L.P. |  | Secretary of State of the State of Delaware | | 184. |  | Insight Phone of Indiana, LLC |  | Secretary of State of the State of Delaware | | 185. |  | Insight Phone of Kentucky, LLC |  | Secretary of State of the State of Delaware | | 186. |  | Insight Phone of Ohio, LLC |  | Secretary of State of the State of Delaware | | 187. |  | Interactive Cable Services, LLC |  | Secretary of State of the State of Delaware | | 188. |  | Intrepid Acquisition LLC |  | Secretary of State of the State of Delaware | | 189. |  | NaviSite LLC |  | Secretary of State of the State of Delaware | | 190. |  | New Wisconsin Procurement LLC |  | Secretary of State of the State of Delaware | | 191. |  | Oceanic Time Warner Cable LLC |  | Secretary of State of the State of Delaware | | 192. |  | Parity Assets, LLC |  | Secretary of State of the State of Delaware | | 193. |  | Time Warner Cable Business LLC |  | Secretary of State of the State of Delaware | | 194. |  | Time Warner Cable Enterprises LLC |  | Secretary of State of the State of Delaware "
"Filing Jurisdiction | | 251. |  | BHN Home Security Services, LLC |  | Secretary of State of the State of Delaware | | 252. |  | BHN Spectrum Investments, LLC |  | Secretary of State of the State of Delaware | | 253. |  | Bright House Networks, LLC |  | Secretary of State of the State of Delaware | | 254. |  | Bright House Networks Information Services (Alabama), LLC |  | Secretary of State of the State of Delaware | | 255. |  | Bright House Networks Information Services (California), LLC |  | Secretary of State of the State of Delaware | | 256. |  | Bright House Networks Information Services (Florida), LLC |  | Secretary of State of the State of Delaware | | 257. |  | Bright House Networks Information Services (Indiana), LLC |  | Secretary of State of the State of Delaware | | 258. |  | Bright House Networks Information Services (Michigan), LLC |  | Secretary of State of the State of Delaware "
"Jurisdiction of Organization | | 86. |  | Charter Communications, LLC |  | Delaware | | 87. |  | Charter Distribution, LLC |  | Delaware | | 88. |  | Charter Fiberlink - Alabama, LLC |  | Delaware | | 89. |  | Charter Fiberlink  Georgia, LLC |  | Delaware | | 90. |  | Charter Fiberlink  Illinois, LLC |  | Delaware | | 91. |  | Charter Fiberlink  Maryland II, LLC |  | Delaware | | 92. |  | Charter Fiberlink  Michigan, LLC |  | Delaware | | 93. |  | Charter Fiberlink  Missouri, LLC |  | Delaware | | 94. |  | Charter Fiberlink  Nebraska, LLC |  | Delaware | | 95. |  | Charter Fiberlink  Tennessee, LLC |  | Delaware | | 96. |  | Charter Fiberlink AR-CCVII, LLC |  | Delaware | | 97. |  | Charter Fiberlink CA-CCO, LLC |  | Delaware | | 98. |  | Charter Fiberlink CC VIII, LLC |  | Delaware | | 99. |  | Charter Fiberlink CCO, LLC |  | Delaware | | 100. |  | Charter Fiberlink CT-CCO, LLC |  | Delaware | | 101. |  | Charter Fiberlink LA-CCO, LLC |  | Delaware | | 102. |  | Charter Fiberlink MA-CCO, LLC |  | Delaware | | 103. |  | Charter Fiberlink MS-CCVI, LLC |  | Delaware | | 104. |  | Charter Fiberlink NC-CCO, LLC |  | Delaware | | 105. |  | Charter Fiberlink NH-CCO, LLC |  | Delaware | | 106. |  | Charter Fiberlink NV-CCVII, LLC |  | Delaware | | 107. |  | Charter Fiberlink NY-CCO, LLC |  | Delaware "
"|  | Charter Communications Operating, LLC | | | | | | USA |  | Automated audio volume stabilizer11 |  | 14/633,232 |  | 2/27/2015 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | Session-based common tier encryption for simulcrypt systems12 |  | 14/575,252 |  | 12/18/2014 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | Unique grouping of communication sources |  | 14/635,04013 |  | 2/27/2015 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | Graphical user interface14 |  | 29/514,673 |  | 1/15/2015 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | Graphical user interface15 |  | 29/514,676 |  | 1/15/2015 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | Set top box16 |  | 29/514,671 |  | 1/15/2015 |  | N/A |  | N/A |  | Charter Communications Operating, LLC "
Assignee 534. |  | TWC 10-17C1 |  | Pending |  | 14/691408 |  | 4/20/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 535. |  | TWC 15-10 |  | Pending |  | 14/686584 |  | 4/14/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 536. |  | TWC 15-01 |  | Pending |  | 14/684001 |  | 4/10/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 537. |  | TWC 04-23D2 |  | Pending |  | 14/678769 |  | 4/3/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 538. |  | TWC 09-51D1 |  | Pending |  | 14/663223 |  | 3/19/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 539. |  | TWC 12-39C1 |  | Pending |  | 14/658622 |  | 3/16/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 540. |  | TWC 12-04C1 |  | Pending |  | 14/658604 |  | 3/16/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 541. |  | TWC 11-35D1 |  | Pending |  | 14/642493 |  | 3/9/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 542. |  | TWC 14-63 |  | Pending |  | 14/626007 |  | 2/19/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 543. |  | TWC 14-55 |  | Pending |  | 14/625992 |  | 2/19/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 544. |  | TWC 06-03C2 |  | Pending |  | 14/623359 |  | 2/16/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 545. |  | TWC 07-07D2 |  | Pending |  | 14/617529 |  | 2/9/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 546. |  | TWC 11-32D1 |  | Pending |  | 14/614966 |  | 2/5/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 547. |  | TWC 14-61 |  | Pending |  | 14/608479 |  | 1/29/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 548. |  | TWC 07-04D2 |  | Pending |  | 14/599910 |  | 1/19/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 549. |  | TWC 14-39 |  | Pending |  | 14/594994 |  | 01/12/15 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 550. |  | TWC 09-03D1 |  | Pending |  | 14/594840 |  | 1/12/2015 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 551. |  | TWC 11-64C1 |  | Pending |  | 14/594348 |  | 1/12/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 552. |  | TWC 14-35 |  | Pending |  | 14/593867 |  | 1/9/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 553. |  | TWC 09-23C2 |  | Pending |  | 14/588456 |  | 1/1/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 554. |  | TWC 14-36 |  | Pending |  | 14/586634 |  | 12/30/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 555. |  | TWC 14-57 |  | Pending |  | 14/574498 |  | 12/18/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 556. |  | TWC 02-10C1 |  | Pending |  | 14/563950 |  | 12/8/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 557. |  | TWC 06-14C1 |  | Pending |  | 14/563232 |  | 12/8/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 558. |  | TWC 12-24C1 |  | Pending |  | 14/562209 |  | 12/5/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 559. |  | TWC 14-65 |  | Pending |  | 14/557741 |  | 12/2/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 560. |  | TWC 14-37 |  | Pending |  | 14/554236 |  | 11/26/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 561. |  | TWC 14-40 |  | Pending |  | 14/541035 |  | 11/13/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 562. |  | TWC 14-41 |  | Pending |  | 14/541035 |  | 11/13/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 563. |  | TWC 12-13C1 |  | Pending |  | 14/540119 |  | 11/13/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 564. |  | TWC 14-54 |  | Pending |  | 14/537735 |  | 11/10/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 565. |  | TWC 11-13C1 |  | Pending |  | 14/536652 |  | 11/9/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 566. |  | TWC 07-05C1 |  | Pending |  | 14/535769 |  | 11/7/14 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 567. |  | TWC 14-39 |  | Pending |  | 14/535046 |  | 11/6/14 |  | USA |  | Time Warner Cable Enterprises LLC 
"OWNER | | | | | | | United States of America |  | THATS HOW |  | Registered |  | 85798090 |  | 4412275 |  | Dec-8-2012 |  | Oct-1-2013 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | THE FUTURE IS HERE. THE FUTURE IS COMING. |  | Registered |  | 85042350 |  | 4292686 |  | May-19-2010 |  | Feb-19-2013 | | Insight Communications Company, Inc. | | | | | | | United States of America |  | THE ROAD TO CITY HALL |  | Registered |  | 74439649 |  | 1862837 |  | Sep-24-1993 |  | Nov-15-1994 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | THE TOTAL DIGITAL HOME |  | Registered |  | 76318511 |  | 2733972 |  | Oct-1-2001 |  | Jul-8-2003 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | THE WAY TO GROW |  | Registered |  | 85159362 |  | 4126332 |  | Oct-22-2010 |  | Apr-10-2012 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | TIENES PODER |  | Registered54 |  | 77825732 |  | 3774790 |  | Sep-14-2009 |  | Apr-13-2010 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ULTRASMART |  | Registered |  | 85082244 |  | 4199035 |  | Jul-12-2010 |  | Aug-28-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | USURF |  | Registered |  | 85031803 |  | 4165063 |  | May-6-2010 |  | Jun-26-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | VELIGENT |  |"
"The term Borrowing Base and the calculation thereof shall not include any assets or property acquired in an Acquisition unless (x)if so required by the Administrative Agent, the Administrative Agent has conducted Field Exams and appraisals reasonably required by it (with results reasonably satisfactory to the Administrative Agent) and (y)if the Person owning such assets or property is not the Company, the Person owning such assets or property shall be a (directly or indirectly)wholly-owned Domestic Subsidiary of the Company and have become a Borrower or Guarantor."
"Default Rate means an annual interest rate equal to (a)the Eurodollar Rate plus (b)the Applicable Margin plus (c)two percent (2%) per annum; provided, however, that with respect to Letter of Credit Fees, the Default Rate shall equal the Letter of Credit Fee then in effect, plus two percent (2%) per annum, in each case to the fullest extent permitted by applicable Laws."
"Disqualified Equity Interest means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a)matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 180 days after the Maturity Date, (b)is convertible into or exchangeable for debt securities (unless only occurring at the sole option of the issuer thereof), (c)(i)contains any repurchase obligation that may come into effect prior to, (ii)requires cash dividend payments (other than taxes) prior to, or (iii)provides the holders thereof with any rights to receive any cash upon the occurrence of a change of control or sale of assets prior to, in each case, the date that is 180 days after the Maturity Date; provided, however, that (i)with respect to any Equity Interests issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Company or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employees termination, resignation, death or disability and (ii)any class of Equity Interest of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not a Disqualified Equity Interest, such Equity Interests shall not be deemed to be Disqualified Equity Interests and (iii)only the portion of such Equity Interests which so matures or is so mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests."
"(j)Inventory that is (i)subject to any warehouse receipt, bill of lading or negotiable Document that has not been issued to the Administrative Agent or (ii)located on leased premises or in the possession of a warehouseman, bailee, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver to the Administrative Agent or an appropriate Rent and Charges Reserve has been established"
"ERISA Event means (a)a Reportable Event with respect to a Pension Plan; (b)the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section4063 of ERISA during a plan year in which such entity was a substantial employer as defined in Section4001(a)(3) of ERISA or a cessation of operations that is treated as such a withdrawal under Section4062(e) of ERISA; (c)a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d)the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section4041 or 4041A of ERISA; (e)the institution by the PBGC of proceedings to terminate a Pension Plan; (f)any event or condition which constitutes grounds under Section4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g)the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections430, 431 and 432 of the Code or Sections303, 304 and 305 of ERISA; or (h)the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section4007 of ERISA, upon the Company or any ERISA Affiliate."
"FATCA means Sections1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section1471(b)(1) of the Code."
"Fronting Exposure means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lenders Applicable Percentage of the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, (b)with respect to the Swing Line Lender, such Defaulting Lenders Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Revolving Lenders and (c) with respect to the Administrative Agent, such Defaulting Lenders Applicable Percentage of Protective Advances other than Protective Advances as to which such Defaulting Lenders participation obligation has been reallocated to other Revolving Lenders."
"Guarantee means, as to any Person, any (a)any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii)to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii)to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv)entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b)any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term Guarantee as a verb has a corresponding meaning."
"Intellectual Property means all past, present and future: trade secrets, know-how and other proprietary information; trademarks, uniform resource locations (URLs), internet domain names, service marks, sound marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter be issued throughout the world and all tangible property embodying the copyrights, unpatented inventions (whether or not patentable); patent applications and patents; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing."
"Interest Period means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending, in each case, on the date one month thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:"
"Investment means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a)the purchase or other acquisition of Equity Interests of another Person (including through the purchase of an option, warrant or convertible or similar type of security), (b)a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c)the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of compliance with Section8.03, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property at the time of such transfer or exchange."
"Material Subsidiary means, as of any date of determination thereof, each direct or indirect Subsidiary of the Company that (a)holds, owns or contributes, as the case may be, two percent (2%) or more of the gross revenues or assets (including Equity Interests but only Equity Interests in other Domestic Subsidiaries) calculated as of the most recent fiscal period with respect to which the Administrative Agent shall have received financial statements required to be delivered pursuant to Sections7.01(a) or 7.01(b) or, if prior to delivery of any financial statements pursuant to such Sections, then calculated with respect to the financial statements dated as of February 26, 2016, (b)is designated by the Borrower as a Material Subsidiary, or (c)Guarantees any Subordinated Indebtedness. The Borrower shall designate one or more Subsidiaries as Material Subsidiaries if, in the absence of such designation, the aggregate gross revenues or assets (including Equity Interests but only Equity Interests in other Domestic Subsidiaries) of all Subsidiaries that are Material Subsidiaries would be less than 98% of the gross revenues or assets calculated as of the most recent fiscal period with respect to which the Administrative Agent shall have received financial statements required to be delivered pursuant to Sections7.01(a), 7.01(b) or 7.01(c) or if prior to delivery of any financial statements pursuant to such Sections, then calculated with respect to the financial statements dated as of February 26, 2016."
"Mortgage Related Documents means, with respect to any real property subject to a Mortgage, the following, in form and substance satisfactory to the Administrative Agent and received by the Administrative Agent for review at least 15 days prior to the effective date of the Mortgage: (a)a mortgagee title policy (or binder therefor) covering the Administrative Agents interest under the Mortgage, in a form and amount and by an insurer acceptable to the Administrative Agent, which must be fully paid on such effective date; and (b)such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as the Administrative Agent may require with respect to other Persons having an interest in the real estate."
"(a)with respect to the sale of any asset by any Loan Party or any Subsidiary, the excess, if any, of (i)the sum of the cash and cash equivalents received in connection with such sale (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) less (ii)the sum of (A)the principal amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with the sale thereof (other than Indebtedness under the Loan Documents and Indebtedness owing to the Company or any Subsidiary), (B)the reasonable out-of-pocket expenses incurred by such Loan Party or any Subsidiary in connection with such sale, including any brokerage commissions, underwriting fees and discount, legal fees, finders fees and other similar fees and commissions, (C)taxes paid or reasonably estimated to be payable by the Loan Party or any Subsidiary in connection with the relevant asset sale, (D)the amount of any reasonable reserve required to be established in accordance with GAAP against liabilities (other than taxes deducted pursuant to clause(C) above) to the extent such reserves are (x)associated with the assets that are the object of such sale and (y)retained by such Loan Party or applicable Subsidiary, and (E)the amount of any reasonable reserve for purchase price adjustments and retained fixed liabilities reasonably expected to be payable by such Loan Party or applicable Subsidiary in connection therewith to the extent such reserves are (1)associated with the assets that are the object of such sale and (2)retained by such Loan Party or applicable Subsidiary; provided that the amount of any subsequent reduction of any reserve provided for in clause(D) or (E) above (other than in connection with a payment in respect of such liability) shall, unless otherwise agreed to by Administrative Agent (X)be deemed to be Net Cash Proceeds of such asset sale occurring on the date of such reduction, and (Y)immediately be applied to the prepayment of Loans in accordance with Section2.06(b)(vii); and"
"(d)after giving pro forma effect to such Acquisition and the costs related thereto (including cash and other property (other than Equity Interests or options to acquire Equity Interests of any Loan Party) given as consideration, any Indebtedness incurred, assumed or acquired by any Loan Party or any Subsidiary in connection with such Acquisition, all additional purchase price amounts in the form of earnouts and other contingent obligations, all fees expenses and transaction costs incurred in connection therewith and the aggregate amount of all other Acquisitions and Investments consummated in any Fiscal Year, the EBITDA of the Person to be acquired shall be at least greater than zero for the trailing twelve month period prior to the date of such Acquisition, as determined on a pro forma basis;"
"Revolving Credit Commitment means, as to each Revolving Lender, its obligation to (a)make Revolving Loans to the Borrower pursuant to Section2.01(a), (b)purchase participations in Letter of Credit Obligations and (c)purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lenders name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement."
"(a)Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect on the Closing Date, except (i)with respect to any reports or financial information required to be delivered pursuant to Section7.01, which shall be prepared in accordance with GAAP as in effect and applicable to that accounting period in respect of which reference to GAAP is being made and (ii)as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded."
"(b)Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i)such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii)the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP."
"1.05 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number)."
"(C)In no event shall an Overadvance or Protective Advance be made or permitted to continue to the extent it would cause Total Revolving Credit Outstandings to exceed the Aggregate Revolving Credit Commitments. Each Overadvance and Protective Advance shall be deemed to be a Revolving Loan hereunder and bear interest at the rate applicable to Eurodollar Loans. The Administrative Agents determination that funding or permitting an Overadvance or a Protective Advance is appropriate shall be conclusive. Each Revolving Lenders obligation to fund its Applicable Percentage of any Overadvance or Protective Advance permitted hereunder shall be absolute and unconditional and shall not be affected by any circumstance, including (A) the failure of any conditions set forth in ARTICLE V hereof to be satisfied, (B) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (C) the occurrence or continuance of a Default, or (D) any other occurrence, event or condition, whether or not similar to any of the foregoing. In no event shall Borrower or other Loan Party be deemed a beneficiary of this Section nor authorized to enforce any of its terms."
"(i)Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the Letter of Credit Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application must be received by the Letter of Credit Issuer and the Administrative Agent not later than 11:00a.m. at least two Business Days (or such later date and time as the Administrative Agent and the Letter of Credit Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A)the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B)the amount thereof; (C)the expiry date thereof; (D)the name and address of the beneficiary thereof; (E)the documents to be presented by such beneficiary in case of any drawing or presentation thereunder; (F)the full text of any certificate to be presented by such beneficiary in case of any drawing or presentation thereunder; and (G)such other matters as the Letter of Credit Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Letter of Credit Issuer (A)the Letter of Credit to be amended; (B)the proposed date of amendment thereof (which shall be a Business Day); (C)the nature of the proposed amendment; and (D)such other matters as the Letter of Credit Issuer may reasonably require. Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may reasonably require."
"(iv)any payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or"
"(ii)If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section2.04(c)(i), the request for Eurodollar Rate Revolving Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lenders payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section2.04(c)(i) shall be deemed payment in respect of such participation."
"(e)Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Revolving Lender funds its Eurodollar Rate Revolving Loan or risk participation pursuant to this Section2.04 to refinance such Revolving Lenders Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender."
"(A)to the extent that the Borrower has determined in good faith that the repatriation to the United States of such Non-Loan Party Prepayment Funds is prohibited, delayed or restricted by any local law, rule or regulation applicable to such non-Loan Party, such Non-Loan Party Prepayment Funds shall be exempt from the prepayment requirements of Section2.06(b) and may be retained by the applicable non-Loan Party for so long, but only so long, as (x)the applicable local law, rule or regulation prohibits, delays or restricts repatriation of such Non-Loan Party Prepayment Funds to the United States and (y)the Borrower shall have caused (and continue to cause) the applicable non-Loan Party to take all commercially reasonable actions required by the applicable local law, rule or regulation to comply with, overcome or remove any such prohibition, delay or restriction; provided that, if at any time such prohibition, delay or restriction is overcome or removed or no longer applicable to any Non-Loan Party Prepayment Funds, the Borrower shall promptly (and in any event within two Business Days) prepay any Indebtedness (as is required by this Section2.06(b)) in the amount of such Non-Loan Party Prepayment Funds (net of additional taxes payable or reserve required as a result of repatriation of such funds) in accordance with the other provisions of this Section2.06(b); and"
"(b)(i)If any amount payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws."
"(c)Generally. All fees payable hereunder shall be paid on the dates due, in immediately available funds, to (i)the Administrative Agent for distribution, in the case of commitment fees and participation fees, or (ii)the Lender, in the case of fees payable to it. Fees paid shall not be refundable under any circumstances."
"(ii)Payments by Borrower. Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or the Letter of Credit Issuer hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the Letter of Credit Issuer, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the Letter of Credit Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Letter of Credit Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation."
"(c)Extent of Liability; Contribution. Each Loan Party that is a Qualified ECP when its guaranty of or grant of Lien as security for a Swap Obligation becomes effective hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECPs obligations and undertakings under this Section 2.16 voidable under any applicable fraudulent transfer or conveyance act). The obligations and undertakings of each Qualified ECP under this Section shall remain in full force and effect until Payment in Full of the Obligations. Each Loan Party intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a keepwell, support or other agreement for the benefit of, each Loan Party for all purposes of the Commodity Exchange Act."
"(ii)Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to ARTICLE IX or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, if such Defaulting Lender is a Revolving Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Letter of Credit Issuer or Swing Line Lender hereunder; third, if such Defaulting Lender is a Revolving Lender, to Cash Collateralize the Letter of Credit Issuers and the Administrative Agents Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.17; fourth, as the Borrower may request (so long as no Default or Event of Default exists) to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released in order to (x) satisfy such Defaulting Lenders potential future funding obligations with respect to Loans under this Agreement and (y) if such Defaulting Lender is a Revolving Lender, Cash Collateralize the Letter of Credit Issuers and the Administrative Agents future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit and Protective Advances; sixth, in the case of a Defaulting Lender under any Facility, to the payment of any obligations owing to the other Lenders under such Facility (in the case of the Revolving Credit Facility, including the Letter of Credit Issuer or Swing Line Lender) as a result of any judgment of a court of competent jurisdiction obtained by any Lender under such Facility (in the case of the Revolving Credit Facility, including the Letter of Credit Issuer or Swing Line Lender) against such Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Obligations owed to, all Non-Defaulting Lenders under the applicable Facility on a pro rata basis (and ratably among all applicable Facilities computed in accordance with the Defaulting Lenders respective funding deficiencies) prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Defaulting Lender under the applicable Facility until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations, Swing Line Loans and Protective Advances are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.18(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto."
"(b)Defaulting Lender Cure. If the Borrower, the Administrative Agent and, in the case that a Defaulting Lender is a Revolving Lender, the Swing Line Lender and the Letter of Credit Issuer, agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit, Swing Line Loans and Protective Advances to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.18(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders having been a Defaulting Lender."
(V)executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
"3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i)any obligation of such Lender to make or continue Eurodollar Rate Loans shall be suspended, and (ii)if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)the Loan Parties shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y)if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Loan Parties shall also pay accrued interest on the amount so prepaid or converted."
"(b)Capital Requirements. If any Lender or the Letter of Credit Issuer determines that any Change in Law affecting such Lender or the Letter of Credit Issuer or any Lending Office of such Lender or such Lenders or the Letter of Credit Issuers holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenders or the Letter of Credit Issuers capital or on the capital of such Lenders or the Letter of Credit Issuers holding company, if any, as a consequence of this Agreement, the Revolving Credit Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Letter of Credit Issuer, to a level below that which such Lender or the Letter of Credit Issuer or such Lenders or the Letter of Credit Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or the Letter of Credit Issuers policies and the policies of such Lenders or the Letter of Credit Issuers holding company with respect to capital adequacy), then from time to time pursuant to subsection (c)below the Loan Parties will pay to such Lender or the Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer or such Lenders or the Letter of Credit Issuers holding company for any such reduction suffered."
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
"(vi)certificates of Responsible Officers of Borrower each Loan Party either (A)identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B)stating that no such consents, licenses or approvals are so required;"
"(xiii)delivery of Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require;"
"(a)The Audited Financial Statements (i)were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (iii)show all material Indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness."
"(c)(i)No ERISA Event has occurred since April 22, 2010, no Loan Party nor any ERISA Affiliate has any knowledge that an ERISA Event occurred prior to April 22, 2010, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii)each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii)as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section430(d)(2) of the Code) is 60% or higher and no Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv)no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v)no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section4069 or Section4212(c) of ERISA; and (vi)since April 22, 2010, no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan."
"6.14 Margin Regulations; Investment Company Act. No Loan Party is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. None of the Loan Parties, any Person Controlling any Loan Party, nor any Subsidiary is or is required to be registered as an investment company under the Investment Company Act of 1940."
"(g)to Borrowers knowledge, (i)there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account; (ii)the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Borrowers customary credit standards, is Solvent, is not contemplating or subject to any proceeding under any Debtor Relief Laws, and has not failed, or suspended or ceased doing business; and (iii)there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Account Debtors financial condition."
"(ii)To the Companys actual knowledge after making due inquiry, no Loan Party nor any Controlled Entity has, within the last five years, directly or indirectly offered, promised, given, paid or authorized the offer, promise, giving or payment of anything of value to a Governmental Official or a commercial counterparty for the purposes of: (x)influencing any act, decision or failure to act by such Government Official in his or her official capacity or such commercial counterparty, (y)inducing a Governmental Official to do or omit to do any act in violation of the Governmental Officials lawful duty, or (z)inducing a Governmental Official or a commercial counterparty to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity; in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage."
"6.26 Senior Indebtedness. All Obligations including those to pay principal of and interest (including post-petition interest, whether or not allowed as a claim under bankruptcy or similar laws) on the Loans and other Obligations, and fees and expenses in connection therewith are entitled to the benefits of the Subordination Provisions applicable to all Indebtedness. The Company represents and warrants that as of the Closing Date, the Company has no Indebtedness outstanding other than the Loans and Obligations extended under this Agreement."
"(g)None of the Credit Parties, or their agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section7.07. Each Loan Party shall look solely to its insurance companies or any other parties other than the Credit Parties for the recovery of such loss or damage and such insurance companies shall have no rights of subrogation against any Credit Party or its agents or employees. If, however, the insurance policies do not provide waiver of subrogation rights against such parties, as required above, then the Loan Parties hereby agree, to the extent permitted by law, to waive their right of recovery, if any, against the Credit Parties and their agents and employees. The designation of any form, type or amount of insurance coverage by any Credit Party under this Section7.07 shall in no event be deemed a representation, warranty or advice by such Credit Party that such insurance is adequate for the purposes of the business of the Loan Parties or the protection of their properties."
"7.20 Post-Closing Deliveries. The Company agrees that it will deliver to the Administrative Agent, in form, detail and content satisfactory to the Bank, the closing documents and other instruments set forth on Exhibit G hereto (collectively, the Post-Closing Items) within the time provided in Exhibit G, and that, notwithstanding any provision to the contrary contained herein, no Event of Default shall be deemed to have occurred for failure to deliver such closing documents and other instruments unless the Company fails to deliver such closing documents and other instruments within the time provided in ExhibitG. In the event any Post-Closing Item is not delivered to Bank (in form satisfactory to Bank) within the time period(s) set forth in ExhibitG, and in addition to the other rights and remedies of Bank hereunder, the Bank has the following rights and remedies notwithstanding any other provisions of this Agreement to the contrary:"
"(l)unsecured Indebtedness of (A)any Loan Party owing to any other Loan Party or any Subsidiary that is not a Loan Party, (B)any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party and (C)any Subsidiary that is not a Loan Party owing to any Loan Party; provided that any such Indebtedness described in this clause which is owing to a Loan Party, shall (1)to the extent the aggregate principal amount thereof is in excess of $500,000.00, be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and pledged to the Administrative Agent on terms acceptable to it, (2)be permitted under Section8.03(c)(iv) or (h), and (3)not be forgiven or otherwise discharged for any consideration other than payment in full in cash unless the Administrative Agent otherwise consents;"
"(b)Dispositions in the Ordinary Course of Business of Equipment or fixed assets that are obsolete, worn out for so long as (i)no Event of Default has occurred and is continuing at the time of such Disposition, (ii)the aggregate fair market value or a book value, whichever is more, of such Equipment and fixed assets does not exceed $500,000.00 in any twelve-month period and (iii)all proceeds thereof are applied in accordance with Section2.06(b);"
"(i)Prepay, redeem, purchase, repurchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Indebtedness, or make any payment in violation of any Subordination Provisions thereof, except, so long as no Default or Event of Default shall exist prior to or immediately thereafter, prepayments, redemptions, purchases, repurchases, defeasances or other satisfaction (collectively, a Prepayment) of Indebtedness made (A)by issuance of Equity Interests (other than Disqualified Equity Interests) to the holder of such Indebtedness, or (B)with the proceeds of any permitted Subordinated Indebtedness;"
"(h)Judgments. There is entered against any Loan Party (i)one or more final judgments or orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by insurance as to which the insurer does not dispute coverage), or (ii)any one or more non- monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, such judgment or order remains unvacated and unpaid and either (A)enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or"
"(b)declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other Loan Obligations owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;"
"Fourth, to that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit Fees and other Obligations expressly described in clausesFifth through Eighth below) payable to the Lenders and the Letter of Credit Issuer (including reasonable fees, charges and disbursements of counsel to the respective Lenders and the Letter of Credit Issuer and amounts payable under ARTICLEIII), ratably among them in proportion to the respective amounts described in this clause Fourth payable to them until paid in full;"
"The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii)the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii)the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv)the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v)the satisfaction of any condition set forth in ARTICLEV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent."
"(a)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Letter of Credit Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Letter of Credit Issuer and the Administrative Agent under Sections2.03(h), 2.09 and 11.04) allowed in such judicial proceeding; and"
(i)release all or a material part of the Collateral without the written consent of each Lender except with respect to Dispositions and releases of Collateral permitted or required hereunder (including pursuant to Section8.05) or under the Security Agreement (in which case such release may be made by the Administrative Agent acting alone);
"(j)subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any other Lien on such property without the written consent of each Lender, except with respect to (i)subordination of such Liens to Liens permitted pursuant to Sections8.02(i) or 8.02(j) and (ii)subordination of such Liens to other Liens on Collateral (other than Accounts and Inventory) with an aggregate book value not to exceed $5,000,000.00; or"
"(d)Change of Address, Etc. The Company, the Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, and the Letter of Credit Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender."
"(a)Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i)to an Eligible Assignee in accordance with the provisions of subsection (b)of this Section, (ii)by way of participation in accordance with the provisions of subsection (d)of this Section, or (iii)by way of pledge or assignment of a security interest subject to the restrictions of subsection (f)of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d)of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Credit Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement."
"If any Lender (or any Assignee thereof) sells a participation, such Lender (or such assignee) shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loans or other obligations under the Loan Documents (the Participant Register); provided that no Lender (nor any assignee thereof) shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender (or any Assignee thereof) shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register."
"(g)Electronic Execution of Assignments. The words execution, signed, signature, and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act."
"(b)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and Letter of Credit Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);"
"11.16Electronic Execution of Assignments and Certain Other Documents. The words execution, signed, signature, and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act."
"Acquired Indebtedness means Indebtedness of a Person whose assets or Equity Interests are acquired by Borrower or any of its Subsidiaries in a Permitted Acquisition; provided, however, that such Indebtedness (a) is either purchase money Indebtedness or a Capital Lease Obligation with respect to equipment or mortgage financing with respect to real property and any Lien related thereto does not secure any other assets, (b) was in existence prior to the date of such Permitted Acquisition, and (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition."
"Hazardous Materials means: (a) any substance, material, or waste that is included within the definitions of hazardous substances, hazardous materials, hazardous waste, toxic substances, toxic materials, toxic waste, or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical."
"ordinary course of business), (e) all Capital Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (g) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances, (h) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (i) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (j) all Guarantees by such Person of Indebtedness of others, (k) obligations under any liquidated earn- out and (l) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor."
"Material Agreement means, with respect to any Person, (i) all Material Indebtedness, (ii) each contract, agreement or other instrument to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable by or to such Person or by or to such Subsidiary of $5,000,000 or more during any consecutive twelve-month period (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary), and (iii) all other contracts or agreements, the loss of which would reasonably be expected to have a Material Adverse Effect."
"Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time."
"Net Income means, for any period, the consolidated net income (or loss) determined for the Borrower and its Subsidiaries, on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary, and (b) the income (or deficit) of any Person (other than a Subsidiary) in which the Borrower or any Subsidiary has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary, to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary."
Prime Rate means the rate of interest per annum publicly announced from time to time by the Lender as its prime rate in effect at its principal offices in New York City. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
"SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word law shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply) and all judgments, orders and decrees of all Governmental Authorities. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Persons successors and assigns (subject to any restrictions on assignments set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference in any definition to the phrase at any time or for any period shall refer to the same time or period for all calculations or determinations within such definition, and (g) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights."
"825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower, Holdco or any Subsidiary of Holdco at fair value, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof."
"(g)Interim Interest. If the Lender shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans and such interest shall be due and payable on the date when such reimbursement is due; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (d) of this Section, then Section 2.11(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Lender."
"(b)To make an election pursuant to this Section, the Borrower shall notify the Lender of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, fax or electronic mail to the Lender of a written Interest Election Request in a form approved by the Lender and signed by the Borrower."
"(c)The Lender shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, if any, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Lender hereunder."
"SECTION 3.20. Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of any the Borrower or Subsidiary, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds, Transaction or other transaction contemplated by this Agreement or the other Loan Documents will violate Anti-Corruption Laws or applicable Sanctions."
"(g)any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05;"
"All such notices and other communications (i) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, (ii) sent by fax shall be deemed to have been given when sent, provided that if not given during normal business hours for the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day of the recipient, or (iii) delivered through electronic communication to the extent provided in paragraph (b) below shall be effective as provided in such paragraph."
"(b)(i) The Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of the Borrower, provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Lender within five (5) Business Days after having received notice thereof, and provided further that no consent of the Borrower shall be required for an assignment to an Affiliate of the Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;"
"(b)Delivery of an executed counterpart of a signature page of this Agreement by fax, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words execution, signed, signature, delivery, and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act."
"If, as a result of any restatement of or other adjustment to the financial statements of U.S. Borrower or for any other reason, U.S. Borrower or Administrative Agent determines that (i) the Total Leverage Ratio as calculated by Borrowers as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrowers shall immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by Administrative Agent (or, after the occurrence of any Event of Default described in Section 8.1(j) or (k) with respect to any Borrower has occurred and is continuing, automatically and without further action by Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any other provision of the Loan Documents. Borrowers obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder."
"Canadian Benefit Plans shall mean all present and future material employee benefit plans of any nature or kind whatsoever that are not Canadian Pension Plans to which any Loan Party or any Subsidiary has any liability, contingent or otherwise, for employees or former employees in Canada, other than Canadian UnionAdministered Plans."
"Canadian UnionAdministered Plans means all present and future Canadian pension plans and Canadian employee benefit plans of any type whatsoever, administered entirely by a union or union representatives or by trustees of which at least half are union representatives, other than a plan in respect of which any director, officer, employee, agent or representative of any Loan Party or any Subsidiary has acted or is acting as a trustee or has been or is involved in the administration, to which any Loan Party or any Subsidiary has any liability, contingent or otherwise, for the benefit of current or former Canadian employees."
"Collateral Access Agreement means any landlord waiver, warehouse, processor or other bailee letter or other agreement, in form and substance satisfactory to Administrative Agent, between Administrative Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of any Loan Party for any real property where any Collateral is located, as such landlord waiver, bailee letter or other agreement may be amended, restated, or otherwise modified from time to time."
"Defaulting Lender means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lenders determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Loans) within two (2) Business Days of the date when due, (b) has notified Borrowers, Administrative Agent or any L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrowers, to confirm in writing to Administrative Agent and Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrowers), or (d) has, or has a direct or indirect parent company that has, at any time after the Closing Date (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination to Borrowers, the L/C Issuer, the Swing Line Lender and each Lender."
"(b) is located in the United States of America (in the case of a U.S. Loan Party) or Canada or the United States of America (in the case of a Canadian Loan Party) at a Permitted Collateral Location as set forth in (and as defined in) the U.S. Security Agreement (in the case of a U.S. Loan Party) or Canadian Security Agreement (in the case of a Canadian Loan Party) and, in the case of any location not owned by such Person, which is subject to a lease reasonably acceptable to the Administrative Agent and at all times subject to a Collateral Access Agreement;"
"(h) is evidenced by an invoice to the Account Debtor dated not more than five (5) Business Days subsequent to the shipment date of the relevant inventory or completion of performance of the relevant services and is issued on ordinary trade terms requiring payment within 30 days of invoice date, and has not been invoiced more than once;"
"Excess U.S. Revolver Availability means, as of any time the same is to be determined, the amount (if any) by which (a) the lesser of the U.S. Borrowing Base as then determined and computed or the U.S. Revolving Credit Commitments as then in effect exceeds (b) the aggregate principal amount of U.S. Revolving Loans, Swing Loans, and U.S. L/C Obligations then outstanding."
"LIBOR means, for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in U.S. Dollars in immediately available funds are offered to Administrative Agent at 11:00 a.m. (London, England time) two (2) Business Days before the beginning of such Interest Period by three (3) or more major banks in the interbank eurodollar market selected by Administrative Agent for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar Loan scheduled to be made as part of such Borrowing, provided that in no event shall LIBOR be less than 0.00%."
"Unfinanced Capital Expenditures means, with respect to any period, the aggregate amount of Capital Expenditures made by Borrowers and their Subsidiaries during such period to the extent permitted by this Agreement and not financed with proceeds of Indebtedness; provided that any Capital Expenditures financed under either Revolving Credit shall be considered Unfinanced Capital Expenditures."
"(c) the sum of (i) Priority Payables then outstanding in respect of the Eligible Receivables and the Eligible Inventory of the U.S. Loan Parties, (ii) the sum of customer credits and reserves for returns as then established or otherwise maintained by the U.S. Loan Parties on their books and records, and (iii) the amount of reserves imposed from time to time on the U.S. Borrowing Base by Administrative Agent acting in its reasonable discretion;"
"THE CREDIT FACILITIES. Section 2.1. Term Loan Commitments . Subject to the terms and conditions hereof, each U.S. Lender, by its acceptance hereof, severally agrees that the principal balance of the term loans outstanding and owing to such Lender under the Existing Credit Agreement in the amount of such Lenders Term Loan Commitment on the Closing Date shall remain outstanding as a term loan under this Agreement (such amount for each Lender being referred to individually as a Term Loan and collectively for all the Lenders as the Term Loans), at which time its Term Loan Commitment shall then expire. As provided in Section 2.6(a), U.S. Borrower may elect that the Term Loans be outstanding as Base Rate Loans or Eurodollar Loans. No amount repaid or prepaid on any Term Loan may be borrowed again."
"(b) Applications. At any time before the Termination Date, the relevant L/C Issuer shall, at the request of the relevant Borrower, issue one or more Letters of Credit (in U.S. Dollars in the case of U.S. Letters of Credit and either in U.S. Dollars or Canadian Dollars in the case of Canadian Letters of Credit), in a form satisfactory to the relevant L/C Issuer, with expiration dates no later than the earlier of 12 months from the date of issuance (or which are cancelable not later than 12 months from the date of issuance and each renewal) or sixty (60) days prior to the Termination Date, in an aggregate face amount as set forth above, upon the receipt of an application duly executed by the relevant Borrower in the form then customarily prescribed by such L/C Issuer for the Letter of Credit requested (each an Application). Each Borrower agrees that if on the Termination Date any Letters of Credit issued for the account of such Borrower remain outstanding, such Borrower shall then deliver to Administrative Agent, without notice or demand, Cash Collateral in an amount equal to 110% of the aggregate amount of each such Letter of Credit then outstanding (which shall be held by Administrative Agent pursuant to the terms of Section 8.4). Notwithstanding anything contained in any Application to the contrary: (i) the relevant Borrower shall pay fees in connection with each Letter of Credit as set forth in Section 2.12, (ii) except as otherwise provided in Sections 2.9, 2.19 or 2.20, unless an Event of Default exists, the relevant L/C Issuer will not call for the funding by the relevant Borrower of any amount under a Letter of Credit before being presented with a drawing thereunder, and (iii) if the relevant L/C Issuer is not timely reimbursed for the amount of any drawing under a Letter of Credit on the date such drawing is paid, the relevant Borrowers obligation to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which such Borrower hereby promises to pay) from and after the date such drawing is paid at a rate per annum equal to (x) in the case of a Letter of Credit issued in U.S. Dollars, the sum of the Applicable Margin plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed) and (y) in the case of a Letter of Credit issued in Canadian Dollars, the sum of the Applicable Margin plus the Canadian Prime Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed). If a L/C Issuer issues any Letter of Credit with an expiration date that is automatically extended unless such L/C Issuer gives notice that the expiration date will not so extend beyond its then scheduled expiration date, unless Administrative Agent or the Required Lenders instruct the L/C Issuer otherwise, such L/C Issuer will give such notice of nonrenewal before the time necessary to prevent such automatic extension if before such required notice date: (i) the expiration date of such Letter of Credit if so extended would be after the Termination Date, (ii) the relevant Revolving Credit Commitments have been terminated, or (iii) a Default or an Event of Default exists and either Administrative Agent or the Required Lenders (with notice to Administrative Agent) have given such L/C Issuer instructions not to so permit the extension of the expiration date of such Letter of Credit. Each L/C Issuer agrees to issue amendments to the Letter(s) of Credit increasing the amount, or extending the expiration date, thereof at the request of the relevant Borrower subject to the conditions of Section 4 and the other terms of this Section 2.3."
"(a) Base Rate Loans. Each Base Rate Loan made or maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, or created by conversion from a Eurodollar Loan, until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect, payable by the relevant Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise)."
"(e) Interest Act (Canada). For the purpose of complying with Interest Act (Canada), it is expressly stated that where interest is calculated pursuant to a rate based on a 365 or 366 day period (the first rate), the yearly rate or percentage of interest to which the first rate is equivalent is the first rate multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 365 or 366 (as may be applicable). Canadian Borrower and the Canadian Lenders acknowledge and agree that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations necessary to compare such rates and that the rates of interest charged under this Agreement in respect of Obligations owing by Canadian Borrower are intended to be based on the nominal rate method and are not effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement."
"(a) Notice to Administrative Agent. The relevant Borrower shall give notice to Administrative Agent by no later than 10:00 a.m.: (i) at least three (3) Business Days before the date on which such Borrower requests the Lenders to advance a Borrowing of Eurodollar Loans and (ii) on the date such Borrower requests the Lenders to advance a Borrowing of Base Rate Loans or, in the case of Canadian Borrower, Canadian Prime Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type of rate specified in such notice of a new Borrowing. Thereafter, subject to the terms and conditions hereof, the relevant Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing or, subject to the minimum amount requirement for each outstanding Borrowing set forth in Section 2.5, a portion thereof, as follows (except in the case of Canadian Prime Rate Loans which may not be converted to another type of interest rate option hereunder but must first be repaid before Canadian Borrower elects to have such amount, or any part thereof, consist of another type of Borrowing hereunder): (i) if such Borrowing is of Eurodollar Loans, on the last day of the Interest Period applicable thereto, the relevant Borrower may continue part or all of such Borrowing as Eurodollar Loans or convert part or all of such Borrowing into Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any Business Day, the relevant Borrower may convert all or part of such Borrowing into Eurodollar Loans for an Interest Period or Interest Periods specified by such Borrower. The relevant Borrower shall give all such notices requesting the advance, continuation or conversion of a Borrowing to Administrative Agent by telephone, telecopy, or other telecommunication device acceptable to Administrative Agent (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing), substantially in the form of Exhibit B or Exhibit C, as applicable, or in such other form acceptable to Administrative Agent. Notice of the continuation of a Borrowing of Eurodollar Loans for an additional Interest Period or of the conversion of part or all of a Borrowing of Base Rate Loans into Eurodollar Loans must be given by no later than 10:00 a.m. at least three (3) Business Days before the date of the requested continuation or conversion. All such notices concerning the advance, continuation or conversion of a Borrowing shall specify the date of the requested advance, continuation or conversion of a Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be advanced, continued or converted, the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period applicable thereto. Upon notice to Borrower by Administrative Agent or the Required Lenders (or, in the case of an Event of Default under Section 8.1(j) or 8.1(k) with respect to any Borrower, without notice), no Borrowing of Eurodollar Loans shall be advanced, continued, or created by conversion if any Default or Event of Default then exists. Borrowers agree that Administrative Agent may rely on any such telephonic, telecopy or other telecommunication notice given by any person Administrative Agent in good faith believes is an Authorized Representative without the necessity of independent investigation, and in the event any such notice by telephone conflicts with any written confirmation such telephonic notice shall govern if Administrative Agent has acted in reliance thereon."
"(iii) U.S. Borrower shall, on each date the U.S. Revolving Credit Commitments are reduced pursuant to Section 2.17, prepay the U.S. Revolving Loans, Swing Loans, and, if necessary, prefund the U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of U.S. Revolving Loans, Swing Loans, and U.S. L/C Obligations then outstanding to the amount to which the U.S. Revolving Credit Commitments have been so reduced. Canadian Borrower shall, on each date the Canadian Revolving Credit Commitments are reduced pursuant to Section 2.17, prepay the Canadian Revolving Loans and, if necessary, prefund the Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Canadian Revolving Loans and Canadian L/C Obligations then outstanding to the amount to which the Canadian Revolving Credit Commitments have been so reduced."
"Section 2.14. NonBusiness Days. Subject to the definition of Interest Period, if any payment hereunder becomes due and payable on a day which is not a Business Day, the due date of such payment shall be extended to the next succeeding Business Day on which date such payment shall be due and payable. In the case of any payment of principal falling due on a day which is not a Business Day, interest on such principal amount shall continue to accrue during such extension at the rate per annum then in effect, which accrued amount shall be due and payable on the next scheduled date for the payment of interest."
"Section 2.15. Payments Set Aside . To the extent that any payment by or on behalf of a Borrower or any other Loan Party is made to Administrative Agent, any L/C Issuer or any Lender, or Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the greater of the Federal Funds Rate (or, in the case of a payment denominated in Canadian Dollars, the CDOR Rate for each such day as determined by Administrative Agent) and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation for each such day."
"(e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of the relevant Loan Parties to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 11.2(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this subsection (e)."
"(A) any Lender that is a U.S. Person shall deliver to U.S. Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of U.S. Borrower or Administrative Agent), executed originals of IRS Form W9 certifying that such Lender is exempt from U.S. federal backup withholding tax;"
"(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W8IMY, accompanied by IRS Form W8ECI, IRS Form W8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I2 or Exhibit I3, IRS Form W9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I4 on behalf of each such direct and indirect partner;"
"(b) any failure (because of a failure to meet the conditions of Section 7 or otherwise) by a Borrower to borrow or continue a Eurodollar Loan or such Swing Loan, or to convert a Base Rate Loan into a Eurodollar Loan or such Swing Loan on the date specified in a notice given pursuant to Section 2.6(a) or 2.7(c),"
"Section 5.3. Authority and Validity of Obligations . Each Loan Party has full right and authority to enter into this Agreement and the other Loan Documents executed by it, to make the borrowings herein provided for (in the case of a Borrower), to guarantee the Secured Obligations (in the case of each Guarantor), to grant to Administrative Agent the Liens described in the Collateral Documents executed by such Loan Party, and to perform all of its obligations hereunder and under the other Loan Documents executed by it. The Loan Documents delivered by the Loan Parties and their Subsidiaries have been duly authorized, executed, and delivered by such Persons and constitute valid and binding obligations of such Loan Parties and their Subsidiaries enforceable against each of them in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar Laws affecting creditors rights generally and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at Law); and this Agreement and the other Loan Documents do not, nor does the performance or observance by any Loan Party or any Subsidiary of any of the matters and things herein or therein provided for, (a) contravene or constitute a default under any provision of Law or any judgment, injunction, order or decree binding upon any Loan Party or any Subsidiary of a Loan Party or any provision of the organizational documents (e.g., charter, certificate or articles of incorporation and bylaws, certificate or articles of association and operating agreement, partnership agreement, or other similar organizational documents) of any Loan Party or any Subsidiary of a Loan Party, (b) contravene or constitute a default under any covenant, indenture or agreement of or affecting any Loan Party or any Subsidiary of a Loan Party or any of their respective Property, or (c) result in the creation or imposition of any Lien on any Property of any Loan Party or any Subsidiary of a Loan Party other than the Liens granted in favor of Administrative Agent pursuant to the Collateral Documents."
"Section 6.2. Maintenance of Properties . Each Loan Party shall, and shall cause each Subsidiary to, maintain, preserve, and keep its property, plant, and equipment in good repair, working order and condition (ordinary wear and tear excepted), and shall from time to time make all needful and proper repairs, renewals, replacements, additions, and betterments thereto so that at all times the efficiency thereof shall be fully preserved and maintained, except to the extent that, in the reasonable business judgment of such Person, any such Property is no longer necessary for the proper conduct of the business of such Person."
"Section 6.6. Inspection; Field Audits . Each Loan Party shall, and shall cause each of its Subsidiaries to, permit Administrative Agent and each Lender, and each of their duly authorized representatives and agents to visit and inspect any of its Property, corporate books, and financial records, to examine and make copies of its books of accounts and other financial records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers, employees and independent public accountants (and by this provision the Loan Parties hereby authorize such accountants to discuss with Administrative Agent and such Lenders the finances and affairs of the Loan Parties and their Subsidiaries) at such reasonable times and intervals as Administrative Agent or any such Lender may designate and, so long as no Default or Event of Default exists, with reasonable prior notice to U.S. Borrower. Borrowers shall pay to Administrative Agent charges for field audits of the Collateral, inspections and visits to Property, inspections of corporate books and financial records, examinations and copies of books of accounts and financial record and other activities permitted in this Section performed by Administrative Agent or its agents or third party firms, in such amounts as Administrative Agent may from time to time request (Administrative Agent acknowledging and agreeing that any internal charges for such audits and inspections shall be computed in the same manner as it at the time customarily uses for the assessment of charges for similar collateral audits); provided, however, that, in the absence of any Default or Event of Default, after the first anniversary of this Agreement Borrowers shall not be required to pay Administrative Agent for more than 1 such audit per calendar year (it being acknowledged and agreed that Borrowers shall pay Administrative Agent for all such audits as Administrative Agent may require in its discretion during the first year of this Agreement in addition to any preclosing audits). In addition, Administrative Agent may obtain (or direct Borrowers to obtain and provide to Administrative Agent) appraisals on the inventory of the Loan Parties and their Subsidiaries, or portions thereof, from time to time as Administrative Agent may designate, which appraisal reports shall in each case be prepared by an appraiser acceptable to Administrative Agent and be in such format and contain such detail as Administrative Agent may request. The costs and expenses incurred in obtaining any such inventory appraisal shall in each case be borne by Borrowers (whether obtained by Administrative Agent or Borrowers)."
Section 6.9. Compliance with OFAC Sanctions Programs . (a) Each Loan Party shall at all times comply with the requirements of all OFAC Sanctions Programs applicable to such Loan Party and shall cause each of its Subsidiaries to comply with the requirements of all OFAC Sanctions Programs applicable to such Subsidiary.
"NEGATIVE COVENANTS AND FINANCIAL COVENANTS. Section 7.1. Borrowings and Guaranties . No Loan Party shall, nor shall it permit any of its Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness, or incur liabilities under any Hedging Agreement, or be or become liable as endorser, guarantor, surety or otherwise for any Indebtedness or undertaking of any Person, or otherwise agree to provide funds for payment of the obligations of another, or supply funds thereto or invest therein or otherwise assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of credit which supports an obligation of another, or subordinate any claim or demand it may have to the claim or demand of any Person; provided, however, that the foregoing shall not restrict nor operate to prevent:"
"(d) Liens on equipment of any Loan Party or any Subsidiary of a Loan Party created solely for the purpose of securing indebtedness permitted by Section 7.1(b), representing or incurred to finance the purchase price of such Property, provided that no such Lien shall extend to or cover other Property of such Loan Party or such Subsidiary other than the respective Property so acquired, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the purchase price of such Property, as reduced by repayments of principal thereon;"
"Section 7.4. Mergers, Amalgamations, Consolidations and Sales . No Loan Party shall, nor shall it permit any of its Subsidiaries to, be a party to any merger, amalgamation or consolidation or amalgamation, or sell, transfer, lease or otherwise dispose of all or any part of its Property, including any disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, that this Section shall not apply to nor operate to prevent:"
"Section 8.5. PostDefault Collections . Anything contained herein or in the other Loan Documents to the contrary notwithstanding (including, without limitation, Section 2.9(b)), all payments and collections received in respect of the Obligations and all proceeds of the Collateral and payments made under or in respect of the Guaranty Agreements received, in each instance, by Administrative Agent or any of the Lenders after acceleration or the final maturity of the Obligations or termination of the Commitments as a result of an Event of Default shall be remitted to Administrative Agent and distributed as follows:"
"Section 9.8. L/C Issuer and Swing Line Lender. The relevant L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Swing Line Lender shall act on behalf of the Lenders with respect to the Swing Loans made hereunder. Each L/C Issuer and the Swing Line Lender shall each have all of the benefits and immunities (i) provided to Administrative Agent in this Section 9 with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the Applications pertaining to such Letters of Credit or by the Swing Line Lender in connection with Swing Loans made or to be made hereunder as fully as if the term Administrative Agent, as used in this Section 9, included such L/C Issuer and the Swingline Lender with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to such L/C Issuer or Swing Line Lender, as applicable. Any resignation by the Person then acting as Administrative Agent pursuant to Section 9.6 shall also constitute its resignation or the resignation of its Affiliate as L/C Issuer and Swing Line Lender except as it may otherwise agree. If such Person then acting as L/C Issuer so resigns, it shall retain all the rights, powers, privileges and duties of a L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Loans or fund risk participations in Reimbursement Obligations pursuant to Section 2.3. If such Person then acting as Swing Line Lender resigns, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Loans or fund risk participations in outstanding Swing Loans pursuant to Section 2.7. Upon the appointment by Borrowers of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable (other than any rights to indemnity payments or other amounts that remain owing to the retiring L/C Issuer or Swing Line Lender), and (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents other than with respect to its outstanding Letters of Credit and Swing Line Loans, and (iii) upon the request of the resigning L/C Issuer, the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit."
"Section 9.9. Hedging Liability and Bank Product Obligations . By virtue of a Lenders execution of this Agreement or an assignment agreement pursuant to Section 11.2, as the case may be, any Affiliate of such Lender with whom any Borrower or any other Loan Party has entered into an agreement creating Hedging Liability or Bank Product Obligations shall be deemed a Lender party hereto for purposes of any reference in a Loan Document to the parties for whom Administrative Agent is acting, it being understood and agreed that the rights and benefits of such Affiliate under the Loan Documents consist exclusively of such Affiliates right to share in payments and collections out of the Collateral and the Guaranty Agreements as more fully set forth in Section 8.5. In connection with any such distribution of payments and collections, or any request for the release of the Guaranty Agreements and Administrative Agents Liens in connection with the termination of the Commitments and the payment in full of the Obligations, Administrative Agent shall be entitled to assume no amounts are due to any Lender or its Affiliate with respect to Hedging Liability or Bank Product Obligations unless such Lender has notified Administrative Agent in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution or payment or release of Guaranty Agreements and Liens."
"(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders, the L/C Issuer and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and Administrative Agent under the Loan Documents including, but not limited to, Sections 2.12, 3.4, 3.5, and 11.4) allowed in such judicial proceeding; and"
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (in each case with respect to any Credit) any such assignment shall be subject to the following conditions:
"(B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the relevant Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if Trade Date is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than U.S. $5,000,000 in the case of any assignment in respect of the U.S. Revolving Credit, U.S. $1,000,000 in the case of any assignment in respect of the Canadian Revolving Credit, or U.S. $1,000,000 in the case of any assignment in respect of any Term Loan, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, the relevant Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed)."
"(B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the U.S. Revolving Credit or the Canadian Revolving Credit if such assignment is to a Person that is not a Lender with a Commitment in respect of such Credit, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or (ii) any Term Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and"
"(c) Register. Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at one of its offices in Chicago, Illinois a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive absent manifest error, and Borrowers, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice."
"(a) Costs and Expenses. Borrowers shall pay (i) all reasonable outofpocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent), and shall pay all fees and time charges and disbursements for attorneys who may be employees of Administrative Agent, in connection with the syndication of the Credits, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including, without limitation, such fees and expenses incurred in connection with (x) the creation, perfection or protection of the Liens under the Loan Documents (including all search, filing and recording fees) and (y) environmental assessments, insurance reviews, collateral audits and valuations, and field exams as provided herein, (ii) all reasonable outofpocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all outofpocket expenses incurred by Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of any counsel for Administrative Agent, any Lender or any L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of Administrative Agent, any Lender or any L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such outofpocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit (including all such costs and expenses incurred in connection with any proceeding under the United States Bankruptcy Code or Canadian Insolvency Law involving any Borrower or any other Loan Party as a debtor thereunder)."
"Section 11.5. No Waiver, Cumulative Remedies. No delay or failure on the part of Administrative Agent, the L/C Issuer, or any Lender, or on the part of the holder or holders of any of the Obligations, in the exercise of any power or right under any Loan Document shall operate as a waiver thereof or as an acquiescence in any default, nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof or the exercise of any other power or right. The rights and remedies hereunder of Administrative Agent, the L/C Issuer, the Lenders, and of the holder or holders of any of the Obligations are cumulative to, and not exclusive of, any rights or remedies which any of them would otherwise have."
"Section 11.8. Survival of Representations. All representations and warranties made herein or in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Agreement and the other Loan Documents, and shall continue in full force and effect with respect to the date as of which they were made as long as any credit is in use or available hereunder."
"(c) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 11.17(b). Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court."
"Section 11.19. USA Patriot Act. Each Lender and L/C Issuer that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 10756 (signed into law October 26, 2001)) (the Act) hereby notifies Borrower that pursuant to the requirements of the Act, it is required to obtain, verify, and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender or L/C Issuer to identify each Borrower in accordance with the Act."
"Reference is made to the Amended and Restated Multicurrency Credit Agreement, dated effective as of December 31, 2015, by and among Fenix Parts, Inc., a Delaware corporation (the U.S. Borrower), Fenix Parts Canada, Inc., a Canadian corporation (the Canadian Borrower and, together with the U.S. Borrower, the Borrowers and individually a Borrower), the Guarantors party thereto, the Lenders party thereto, and BMO Harris Bank N.A., a national banking association, as Administrative Agent and L/C Issuer (as amended, restated, modified or supplemented from time to time, the Credit Agreement). Capitalized terms used herein and not defined herein have the meanings assigned to them in the Credit Agreement. This Borrowing Base Certificate is furnished to Administrative Agent and the Lenders pursuant to the Credit Agreement."
"6. Described below are the exceptions, if any, to paragraph 3 above by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Borrowers have taken, are taking, or propose to take with respect to each such condition or event:"
"To: BMO Harris Bank N.A., as Administrative Agent for the Lenders and L/C Issuer party to the Amended and Restated Multicurrency Credit Agreement, dated effective as of December 31, 2015, by and among Fenix Parts, Inc., a Delaware corporation (the U.S. Borrower), Fenix Parts Canada, Inc., a Canadian corporation (the Canadian Borrower and, together with the U.S. Borrower, the Borrowers and individually a Borrower), the Guarantors party thereto, the Lenders party thereto, and Administrative Agent (as amended, restated, modified or supplemented from time to time, the Credit Agreement)"
"and performance of this Amendment, (ii) the Credit Agreement and each other Credit Document to which it or any of its applicable Subsidiaries that are Credit Parties is a party constitutes the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors rights generally and general principles of equity (whether considered in a proceeding in equity or law) and (iii) no Default or Event of Default exists under the Credit Agreement or any of the other Credit Documents."
"By a facility agreement dated on or about the date of this Agreement (the Principal Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating Bank and (8) the ECA Agent as ECA agent, the Lenders have agreed to make available a loan of up to 545,688,000 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement. ---|--- (B)"
"Release ---|--- The Existing Borrower and the Finance Parties hereby agree that, as and with effect from the Novation Effective Time, they shall each mutually release and discharge each other from all liabilities, obligations, claims and demands whatsoever under or touching or concerning the Principal Agreement and in respect of anything done or omitted to be done under or in connection therewith except that if at the Novation Effective Time there are any outstanding liabilities of the Existing Borrower under the Principal Agreement which are the subject of an indemnity claim against the Seller pursuant to clause 7 of the Receivable Purchase Agreement, to prevent the Finance Parties losing the ability to recover those claims against the Seller, such liabilities shall be preserved against the Existing Borrower until such claims are satisfied."
"Alternative Spot Rate of Exchange ---|--- The parties acknowledge that the ECB FX Rate EUR/USD may cease to be published (or its publication time delayed) before the Novation Effective Date. The New Borrower and the Facility Agent agree to have an initial discussion in relation to replacing the reference rate for calculating the Spot Rate of Exchange by no later than the date falling six months before the anticipated Actual Delivery Date. The Facility Agent shall consult with the Lenders and Coface in connection with agreeing any replacement reference rate. Any replacement reference rate agreed by the parties shall be recorded by way of a short amendment to this Agreement or, alternatively, in the delivery funds flow agreement referred to in clause 13.6 of the Buyer Consent Agreement."
"Coface Premium ---|--- It is acknowledged by the parties that if the New Borrower voluntarily cancels all or any of the Commitment under clause 10.2, the New Borrower shall not be obliged to pay (or reimburse the Existing Borrower or the Seller for) all or any part of the Coface Premium."
"the Facility Agent, the French Coordinating Bank and the ECA Agent will be released from their respective obligations under the Agency and Trust Deed (on the basis that the provisions of Article X (The Facility Agent and the Coface Agent) of the Novated Credit Agreement will then apply); and ---|--- (e)"
"Rights of New Borrower under the Principal Agreement ---|--- It is agreed where any rights are expressed to be conferred on the New Borrower (as Buyer) under the Principal Agreement, the New Borrower shall be entitled to the benefit of such rights as if it were a party to the Principal Agreement for the sole purpose of those rights (and clause 17.7 of the Principal Agreement shall be deemed to be modified accordingly)."
"HULL NO. J34 CREDIT AGREEMENT, dated 22 June 2016 as novated, amended and restated on the Actual Delivery Date (as defined below), is among Royal Caribbean Cruises Ltd., a Liberian corporation (the Borrower), Sumitomo Mitsui Banking Corporation Europe Limited in its capacity as agent for the Lenders referred to below in respect of Coface-related matters (in such capacity, the ECA Agent), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the Facility Agent) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a Lender in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a Lender and, collectively, the Lenders)."
"if that rate is less than zero, the LIBO Rate shall be deemed to be zero. ---|--- Lien means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever."
"SECTION 2.4. Funding. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan."
"KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary."
"impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or ---|---|--- |"
"If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower."
"If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations."
"SECTION 5.1.9. Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or one of the Borrowers wholly owned Subsidiaries, free of all recorded Liens, other than Liens permitted by Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement)."
"Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of Coface, the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders."
"SECTION 6.16. Compliance with Laws. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with"
"SECTION 7.1.3.Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):"
"Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof; ---|---|--- |"
"any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and ---|---|--- |"
"so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as: ---|---|--- "
"effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal Subsidiary would be required to pay if such instrument were terminated at such time."
"SECTION 10.5. Successor. The Facility Agent may resign as such at any time upon at least 30 days prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agents successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event or Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agents giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agents resignation hereunder as the Facility Agent, the provisions of:"
"SECTION 10.10. The Facility Agents Duties. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge."
"transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys fees and expenses, incurred in connection with the assignment)."
"SECTION 11.14.3. Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not."
"WHEREAS, the Borrower and each of the Guarantors are members of the same consolidated group of companies and are engaged in operations which require financing on a basis in which credit can be made available from time to time to the Borrower, and the Guarantors will derive direct and indirect economic benefit from the Loans, Swingline Loans and Letters of Credit under the Credit Agreement;"
"SECTION 4. Amendments, Etc. No amendment or waiver of any provision of this Guaranty nor consent to any departure by any Guarantor herefrom shall in any event be effective unless the same shall be in writing, approved by the Required Lenders (or by all the Lenders where the approval of each Lender is required under the Credit Agreement) and signed by the Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given."
"(a) No failure on the part of any Guarantied Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by applicable law, any of the other Loan Documents."
"| | | | ---|---|---|---|--- |  | |  | Homecraft Corporation |  | |  | HTC Golf Club, LLC |  | |  | Independence L.L.C. |  | |  | Lakelands at Easton, L.L.C. |  | |  | Legends Club, LLC |  | |  | Legends Golf Club, LLC |  | |  | LenFive, LLC |  | |  | LenFive Sub, LLC |  | |  | LenFive Sub II, LLC |  | |  | LenFive Sub III, LLC |  | |  | Len Paradise, LLC |  | |  | Lencraft, LLC |  | |  | LENH I, LLC |  | |  | Lennar Aircraft I, LLC |  | |  | Lennar Arizona Construction, Inc. |  | |  | Lennar Arizona, Inc. |  | |  | LennarAssociatesManagementHoldingCompany |  | |  | Lennar Associates Management, LLC |  | |  | Lennar Buffington Colorado Crossing, L.P. |  | |  | Lennar Buffington Zachary Scott, L.P. |  | |  | Lennar Carolinas, LLC |  | |  | Lennar Central Park, LLC |  | |  | Lennar Central Region Sweep, Inc. |  | |  | Lennar Chicago, Inc. |  | |  | Lennar Colorado, LLC |  | |  | Lennar Communities Development, Inc. |  | |  | Lennar Communities Nevada, LLC |  | |  | Lennar Communities of Chicago L.L.C. |  | |  | Lennar Communities, Inc. |  | |  | Lennar Construction, Inc. |  | |  | Lennar Developers, Inc. |  | |  | Lennar Family of Builders GP, Inc. |  | |  | LennarFamilyofBuildersLimitedPartnership |  | |  | Lennar Fresno, Inc. |  | |  | Lennar Georgia, Inc. |  | |  | Lennar Hingham Holdings, LLC |  | |  | Lennar Hingham JV, LLC |  | |  | Lennar Homes Holding, LLC |  | |  | Lennar Homes of Arizona, Inc. |  | |  | Lennar Homes of California, Inc. |  | |  | Lennar Homes of Tennessee, LLC |  | |  | LennarHomesofTexasLandandConstruction,Ltd. |  | |  | Lennar Homes of Texas Sales and Marketing, Ltd. |  | |  | Lennar Homes, LLC |  | |  | Lennar Imperial Holdings Limited Partnership |  | |  | Lennar Layton, LLC |  | |  | Lennar Mare Island, LLC |  | |  | Lennar Marina A Funding, LLC |  | |  | Lennar Massachusetts Properties, Inc. |  | |  | Lennar New Jersey Properties, Inc. "
"2\. Duties. During the Term, the Executive shall serve as the Chief Executive Officer, Chief Commercial Officer, President and Secretary of the Company, and shall perform the executive and administrative duties, functions and privileges incumbent with such positions and such other duties as reasonably determined and assigned by the Board of Directors of the Company (the Board), from time to time. In addition, the Executive shall serve as the Chief Executive Officer, Chief Commercial Officer and President of Valeritas Holdings, Inc., the parent of the Company. The Executive shall devote substantially all of his time, attention and skill to such duties, except for paid vacation and other excused absence periods, and shall serve the Company and its affiliates faithfully and to the best of his ability, and shall use his best efforts to promote the success of the business of the Company. The Executives employment is subject to compliance with the Companys policies, including any code of conduct, all as may be amended from time to time."
"(2) an Annual Bonus for the year in which the Executives Qualifying Termination occurs, subject to achievement of any performance targets or goals applicable to such Annual Bonus and otherwise to the extent that the Company, in its sole discretion, awards bonuses to its executives for the year in which the termination occurs, and any such Annual Bonus shall be pro-rated to reflect the Executives employment with the Company through the date of termination and shall be payable in a lump sum at the same time as other such annual bonuses are payable to active employees;"
"d. Employee Benefit Plans. The Executives accrual of or participation in plans providing for benefits will cease on the effective date of the Executives termination of employment and the Executive will be entitled to accrued benefits pursuant to such plans only as provided in such plans. The Executive will not receive, as part of his termination pay pursuant to this Section 5, any payment or other compensation for any vacation, holiday, sick leave or other leave unused on the effective date of termination of the Executives employment pursuant to this Agreement, except to the extent required to be paid by applicable law."
"a. Covenant Not to Compete/Not to Solicit. The Executive acknowledges and recognizes that the Company operates in a competitive field and that confidential information concerning its business operations is a substantial asset that was acquired through considerable time, money and effort. Accordingly, in consideration of the execution of this Agreement, the Executive agrees to the following:"
"(i) During the Restricted Period (as defined below) and within the Restricted Area (as defined below), the Executive will not, individually or in conjunction with others, directly or indirectly, engage in any activities with a Competitive Business (as defined below), whether as an officer, director, proprietor, employer, partner, independent contractor, active investor, consultant, advisor or agent, except in connection with the Executives responsibilities as an employee of the Company or an affiliate."
"i. Waiver of Breach. No delay or omission by a party in exercising any right, remedy or power under this Agreement or existing at law or in equity shall be construed as a waiver thereof, and any such right, remedy or power may be exercised by such party from time to time and as often as may be deemed expedient or necessary by such party in its sole discretion."
"6\. The Executive acknowledges that the Executive has received all amounts due from the Company through the Executives termination of employment, including but not limited to all wages earned and payment for all accrued but unused paid vacation time. No other amounts are due to the Executive from the Company except pursuant to Section 5 of the Agreement (to the extent applicable). The Executive also represents that there are no existing claims, charges, or complaints filed by the Executive against the Releasees in any federal, state or local court or administrative agency."
"11\. Should any provision of this Release and Waiver be declared or determined by any Court of competent jurisdiction to be illegal, invalid or unenforceable (except for Paragraph 1), the legality, validity and enforceability of the remaining parts, terms or provisions shall not be affected thereby and the illegal, unenforceable or invalid part, term or provisions shall be deemed not to be part of this Release and Waiver."
"Employment Agreement and/or any of its terms to the Executives immediate family, financial advisors and attorneys, so long as the Executive instructs every such Person to whom the Executive makes such disclosure not to disclose the terms of this Employment Agreement further. Anytime after this Employment Agreement is filed with the Securities and Exchange Commission or any other government agency by the Company and becomes a public record, this provision shall no longer apply."
"4.8. Remedies. The Executive agrees that any breach of the terms of this Section4 would result in irreparable injury and damage to the Company Group for which the Company would have no adequate remedy at law; the Executive therefore also agrees that in the event of said breach or any threat of breach, the Company shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all Persons acting for and/or with the Executive, without having to prove damages, in addition to any other remedies to which the Company may be entitled at law or in equity, including, without limitation, the obligation of the Executive to return any portion of the Severance Amount paid by the Company to the Executive. The terms of this paragraph shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including, without limitation, the recovery of damages from the Executive. The Executive and the Company further agree that the provisions of the covenants contained in this Section4 are reasonable and necessary to protect the businesses of the Company Group because of the Executives access to Confidential Information and his material participation in the operation of such businesses. In the event that the Executive willfully and materially breaches any of the covenants set forth in this Section4, then in addition to any injunctive relief, the Executive will promptly return to the Company any portion of the Severance Amount that the Company has paid to the Executive and the Executive shall not be entitled to any additional payments relating to the Severance Amount or any other benefits (including reimbursement for outplacement services) pursuant to Section3 of this Employment Agreement."
"8.2. Amendments and Waivers. This Employment Agreement and any of the provisions hereof may be amended, waived (either generally or in a particular instance and either retroactively or prospectively), modified or supplemented, in whole or in part, only by written agreement signed by the parties hereto; provided, that, the observance of any provision of this Employment Agreement may be waived in writing by the party that will lose the benefit of such provision as a result of such waiver. The waiver by any party hereto of a breach of any provision of this Employment Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise expressly provided herein, no failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy."
"8.6. Severability. Whenever possible, each provision or portion of any provision of this Employment Agreement, including those contained in Section4 hereof, will be interpreted in such manner as to be effective and valid under applicable law but the invalidity or unenforceability of any provision or portion of any provision of this Employment Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Employment Agreement in that jurisdiction or the validity or enforceability of this Employment Agreement, including that provision or portion of any provision, in any other jurisdiction. In addition, should a court or arbitrator determine that any provision or portion of any provision of this Employment Agreement, including those contained in Section4 hereof, is not reasonable or valid, either in period of time, geographical area, or otherwise, the parties hereto agree that such provision should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable or valid."
"4. The Executive specifically acknowledges that his acceptance of the terms of this Release is, among other things, a specific waiver of his rights, claims and causes of action under Title VII, ADEA, ADA and any state or local law or regulation in respect of discrimination of any kind; provided, however, that nothing herein shall be deemed, nor does anything contained herein purport, to be a waiver of any right or claim or cause of action which by law the Executive is not permitted to waive."
"(ii) provided Executive and his eligible dependents timely and properly elect to continue health care coverage under the Consolidated Omnibus Reconciliation Act of 1985 (COBRA), continued participation by Executive and Executives eligible dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for nine (9)months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section105(h)of the Internal Revenue Code of 1986, as amended (the Code), or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive an amount equal to the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for nine (9)months, which amount shall be paid in a lump sum at the same time payments under Section5(e)(i)commence and is intended to assist Executive with costs of health coverage, which Executive may (but is not required to) obtain through an election to continue health care coverage under COBRA; and"
"(a) The payments and benefits under this Agreement are intended to comply with or be exempt from Section409A of the Code, and the regulations and guidance promulgated thereunder (collectively, Section409A) and this Agreement shall be interpreted and construed in a manner intended to comply therewith. For purposes of this Agreement, Executive will be considered to have experienced a termination of employment only if Executive has a separation from service with the Company and all of its controlled group members within the meaning of Section409A. Whether Executive has a separation from service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section409A."
"(d) If any of the reimbursements or in-kind benefits provided for under this Agreement are subject to Section409A, the following rulesshall apply: (i)in no event shall any such reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred; (ii)the amount of such reimbursable expenses incurred, or the provision of in-kind benefits, in one tax year shall not affect the expenses eligible for reimbursement or the provision of in-kind benefits in any other tax year; and (iii)the right to such reimbursement for expenses or provision of in-kind benefits is not subject to liquidation or exchange for any other benefit."
"d. Nothing in this Agreement restricts or prohibits Executive from initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the Regulators), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. However, to the maximum extent permitted by law, Executive is waiving Executives right to receive any individual monetary relief from the Company or any others covered by the Release resulting from such claims or conduct, regardless of whether Executive or another party has filed them, and in the event Executive obtains such monetary relief the Company will be entitled to an offset for the payments made pursuant to this Agreement. This Agreement does not limit Executives right to receive an award from any Regulator that provides awards for providing information relating to a potential violation of law."
"2. Consultation with Attorney; Voluntary Agreement. The Company advises Executive to consult with an attorney of his choosing prior to signing this Agreement. Executive understands and agrees that he has the right and has been given the opportunity to review this Agreement and, specifically, the General Release in Section1 above, with an attorney. Executive also understands and agrees that he is under no obligation to consent to the General Release set forth in Section1 above. Executive acknowledges and agrees that the payments to be made to Executive pursuant to the Employment Agreement are sufficient consideration to require him to abide with his obligations under this Agreement, including but not limited to the General Release set forth in Section1. Executive represents that he has read this Agreement,"
"such non-U.S. taxes. The Company will further pay the Executive an amount sufficient to leave the Executive in a net after-tax position equivalent to what the Executive would experience if the Executive were subject only to U.S. Federal, state and local income taxes and had not provided the services of the Tax Professional during any such year (an Equalization Payment). The Company will engage the Tax Professional at the Companys cost to determine the amount of any Equalization Payment due to the Executive. Any Equalization Payment will be made as soon as reasonably promptly following such determination but in any event not later than the end of the year following the year in which the Executive pays the relevant taxes."
"Base Salary that would provide a basis for Executives Good Reason resignation) and employee benefits consistent with the Companys then existing benefits plans and programs at the same costs as such benefits are provided to active executive officer employees; (B)shall be entitled to receive an amount equal to the Target Bonus (without regard to any reduction in Target Bonus that would provide a basis for Executives Good Reason resignation) with respect to the Notice Period (i.e., a prorated Target Bonus based upon the number of days in the applicable Notice Period), which prorated Target Bonus amount shall be payable in a lump sum no more than 60 days after the Notice of Termination (provided that if the 60-day period begins in one calendar year and ends in a second calendar year, such Target Bonus shall be paid in the second calendar year); (C) shall, except to the extent expressly set forth in the applicable equity award agreement evidencing the award of performance vested stock options described on Schedule II attached hereto, continue to vest through the last day of the Notice Period in any equity awards outstanding as of the date the Notice of Termination is given; provided, and notwithstanding the foregoing, Section5(a) may apply if the Notice of Termination of an Involuntary Departure is provided within the 12 month period following a Change in Control (the Change in Control Period or CIC Period) and (D)shall not continue to accrue vacation under Section2(f)."
"(d)Disability. The Company may terminate the Executives employment if the Executive is disabled and unable to perform the essential functions of the Executives then existing position or positions with or without reasonable accommodation for a period of 180days (which need not be consecutive) in any 12-month period, provided that, if the Company maintains a long-term disability plan for the Companys employees at the time of such termination, the Executives disability would, if the Executive otherwise qualified for disability benefits under such long-term disability plan, result in the Executive receiving benefits coverage for the longest period of time provided under such long-term disability plan. If any question shall arise as to whether during any period the Executive is disabled so as to be unable to perform the essential functions of the Executives then existing position or positions with or without reasonable accommodation, the Executive may, and at the request of the Company shall, submit to the Company a certification in reasonable detail by a physician mutually acceptable to Executive and Company as to whether the Executive is so disabled or how long such disability is expected to continue, and such certification shall for the purposes of this Agreement be conclusive of the issue. If theExecutiveand the Company cannot agree as to a qualified physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of disability made in writing to the Company and theExecutive shall be final and conclusive for all purposes of thisAgreement. The Executive shall cooperate with any reasonable request of the physician in"
"has occurred; (ii)the Executive notifies the Company in writing of the occurrence of the Good Reason Condition within 90 days of the occurrence of such condition; (iii)the Executive cooperates in good faith with the Companys efforts, for a period not less than 30days following such notice (the Cure Period), to remedy the Good Reason Condition; (iv)notwithstanding such efforts, the Good Reason condition continues to exist; and (v)the Executive terminates employment within 60days after the end of the Cure Period. If the Company cures the Good Reason Condition during the Cure Period, Good Reason shall be deemed not to have occurred."
"4.Compensation Upon Termination. If the Executives employment with the Company is terminated for any reason, the Company shall pay or provide to the Executive (or to the Executives authorized representative or estate)(i) any Base Salary earned through the Date of Termination; (ii)unpaid expense reimbursements (subject to, and in accordance with Section2(d) of this Agreement); (iii) subject to Section3(b)(ii)(D), unused vacation that accrued through the Date of Termination; (iv)except in the case the Executives employment is terminated by the Company for Cause under Section3(e), any unpaid Bonus earned for the year prior to the year in which the Notice of Termination is delivered; (v)a prorated portion of the Bonus the Executive would have earned for the year in which the Notice of Termination is delivered, based on actual performance as determined in good faith by the Board or the Committee (with such proration based on the portion of such year elapsed prior to delivery of the Notice of Termination); (vi) the payments and benefits in Section2(i) through the year in which the termination occurs (including during any Notice Period); and (vii)any vested benefits the Executive may have under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or provided in accordance with the terms of such employee benefit plans (together, the Accrued Benefit) on or before the time required by law but in no event more than 30 days after the Executives Date of Termination, provided that the amounts payable under clauses (iv)and (v), if any, shall be paid at the same time Bonuses for the given year are paid to the Companys executive employees generally. "
"(b)All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit."
"(c)To the extent that any payment or benefit described in this Agreement constitutes non-qualified deferred compensation under Section409A of the Code, and to the extent that such payment or benefit is payable upon the Executives termination of employment, then such payments or benefits shall be payable only upon the Executives separation from service. The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section1.409A-1(h)."
"was employed by the Company. The Executives cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executives employment, the Executive shall use reasonable efforts to cooperate with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company. The Company shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection with the Executives performance of obligations pursuant to this Section7(c)."
"12.Successor to the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executives personal representatives, executors, administrators, heirs, distributees, devisees and legatees. In the event of the Executives death after his termination of employment but prior to the completion by the Company of all payments due him under this Agreement, the Company shall continue such payments to the Executives beneficiary designated in writing to the Company prior to his death (or to his estate, if the Executive fails to make such designation). "
"13.Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. "
"1\. Employment. Magnum hereby agrees to employ Executive, and Executive hereby agrees to accept employment with Magnum, upon the terms and conditions contained in this Agreement. The employment of the Executive by Magnum pursuant to this Agreement shall be for a period beginning on the Effective Date and continuing until Executives employment is terminated as provided in Section5 herein (the Employment Period)."
"(a) In consideration of all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary (the Base Salary) at an annual rate of $500,000, during the Employment Period. Executives Base Salary will be reviewed from time to time but will not decrease, except in the event of an across the board reduction applicable to substantially all senior executives of the Company."
"6.1 Termination Without Cause, for Disability or Resignation for Good Reason. If Executives employment is terminated at any time during the Employment Period by the Company without Cause (and not for death) or pursuant to Section5.2 (Disability) or by Executive for Good Reason (as defined in Section6.4), subject to Section6.5 and Section12.7, where applicable, Executive shall be entitled to:"
"(c) Noncompetition Period shall mean during Executives employment and during the twelve- (12-) month period following such termination of employment regardless of reason, plus during any additional period for which Executive receives severance payments from the Company pursuant to Section6.1(b) or 6.1(f) hereof. For the avoidance of doubt, this means, in the event Executive receives severance payments from the Company pursuant to Section6.1(b) hereof, the Noncompetition Period shall run for a period of twenty-four (24)months following the date Executive terminates employment with the Company; moreover, in the event Executive receives payments from the Company under the circumstances contemplated in Section6.1(f) hereof, the Noncompetition Period shall run for a period of thirty (30)months."
"(y) which conducts business in any locality or region of the United States or Ontario, Canada (whether or not such competing entity or business is physically located in the United States or Canada), or any other area where Business is being conducted by the Company on the date Executives employment is terminated hereunder or in each and every area where the Company intends to conduct such Business as it expresses such intent in the written strategic plan developed by the Company as of the date Executives employment is terminated hereunder; and"
"(a) Executive agrees that during employment with the Company, any and all inventions, discoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, formulas, business processes, secret processes and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either alone or in conjunction with others and related or in any way connected with the"
"12.6 Reporting and Withholding. The Company shall be entitled to report all income and withhold from any amounts to be paid or benefits provided to Executive hereunder any federal, state, local or foreign income tax withholding, FICA contributions, Medicare contributions, or other taxes, charges or deductions which it is from time to time required to withhold or that Executive has authorized the Company to withhold. The Company shall be entitled to rely on an opinion of counsel if any question as to the amount or requirement of any such withholding shall arise."
"(a) The parties agree that this Agreement shall be interpreted to comply with or, to the extent possible, be exempt from Section409A of the Internal Revenue Code, as amended (the Code), and the regulations and guidance promulgated thereunder to the extent applicable (collectively Code Section409A), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section409A. Except to the extent attributable to a breach of this Agreement by the Company, in no event whatsoever will the Company be liable for any additional tax, interest or penalties that may be imposed on Executive under Code Section409A or any damages for failing to comply with Code Section409A."
"specified employee within the meaning of that term under Code Section409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section409A payable on account of a separation from service, if no exemption or exclusion from Section409 (A)is determined to apply, such payment or benefit shall not be made or provided until the date which is the earlier of (i)the expiration of the six (6)-month period measured from the date of such separation from service of Executive, and (ii)the date of Executives death (the Delay Period). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section12.7(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Executive in a lump sum with interest at the prime rate during the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates and in the normal payment forms specified for them herein."
"12.13 Compliance with the Dodd-Frank Act. The Company and the Executive acknowledge and agree that it is the intent of both parties that this Agreement comply with all applicable laws and regulations, including, without limitation, those under the Dodd-Frank Act.In accordance with the foregoing sentence, the Company and Executive agree to enter into any amendments to this Agreement from time to time, as may be necessary to comply with all applicable laws and regulations, including, without limitation, those relating to any incentive compensation, hedging, or clawback policies established from time to time by the Company to comply with the Dodd-Frank Act."
"e. Nothing in this Section1, or elsewhere in this Agreement, is intended as, or shall be deemed or operate as, a release by the Employee (i)of any claims for payments to which the Employee is entitled under the express language of Section6 of the Employment Agreement, (ii)of any claims for vested benefits (e.g., medical or 401(k) benefits) and (iii)of any right that the Employee had immediately prior to his termination of employment to be indemnified by any Company Released Party or to coverage under any directors and officers insurance policy and any run-off policy thereto."
"b. Nothing in this Agreement shall prevent the Employee from challenging or seeking a determination in good faith of the validity of the ADEA waiver and release contained in this Agreement, nor does it prevent the Employee from filing a charge with the EEOC to enforce the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law."
"| | ---|---|--- Cedar Fair, L.P. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Cedar Fair Management, Inc. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Magnum Management Corp. | | ---|---|--- | By: |  |  Name: |  | Title: |  |  --- EMPLOYEE "
"2.2 Morken will work exclusively for Bandwidth on a full-time basis, with his primary office at Bandwidths headquarters. During normal business hours Morken will devote substantially all of his business time and attention to Bandwidths business. The foregoing does not prohibit Morken from engaging in civic, professional and business activities that do not interfere with his duties to Bandwidth, and that otherwise do not violate this Agreement."
"3.1.1 During the Employment Period, Bandwidth will pay to Morken a salary at the initial rate of Three Hundred Seventy Five Thousand Dollars ($375,000) per annum (the Base Salary). The Base Salary will be earned and paid in arrears, in equal installments, semi-monthly, or at such other interval as the Board directs, but no less often than once each month. At the beginning of each year during the Employment Period, Morken and the Board will in good faith review the Base Salary. Base Salary will be increased to mutually agreed upon levels consistent with the growth of Bandwidths business. Bandwidth shall be entitled to withhold, or cause to be withheld, any amount of federal, state, city or other withholding taxes or other amounts either required by law or authorized by Morken with respect to payments made to Morken in connection with his employment hereunder."
"3.9 Indemnification. During the Employment Period and after Morkens termination of employment, Bandwidth shall indemnify Morken and hold Morken harmless from and against any claim, loss or cause of action arising from or out of Morkens performance as an officer, director or employee of Bandwidth or any of its subsidiaries or other affiliates or in any other capacity, including any fiduciary capacity, in which Morken serves at Bandwidths request, in each case to the maximum extent permitted by law and under Bandwidths Articles of Incorporation and By-Laws. This indemnification right is in addition to any similar rights under any statute, Bandwidths Certificate of Incorporation, By-Laws and under any other applicable agreements that now exist or may exist from time to time. During the Employment Period and for at least 3 years following Morkens termination of employment, Morken shall be covered by any policy of directors and officers liability insurance maintained by Bandwidth for the benefit of its officers and directors."
"14.1 In order to ensure compliance with Code Section409A and the regulations and guidance promulgated thereunder (collectively Section409A), the provisions of this Section14 shall govern in all cases over any contrary or conflicting provision in this Agreement (other than a comparable Section409A provision that is expressly intended to govern over this provision by its terms). The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Morken acknowledges and agrees that Bandwidth has made no representation to Morken as to the tax treatment of the compensation and benefits provided pursuant to this Agreement and that Morken is solely responsible for all taxes due with respect to such compensation and benefits."
"An individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a)is made (i)in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii)solely for the purpose of reporting or investigating a suspected violation of law; or (b)is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding."
"(v) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable business expenses incurred by the Executive in accordance with the policies, practices and procedures of the Company provided to senior executives of the Company under the terms and conditions therein as in effect from time to time. Any amounts payable to the Executive under this Section2(b)(v)shall be made in accordance with Treasury RegulationSection1.409A-3(i)(1)(iv) and shall be paid on or before the last day of the Executives taxable year following the taxable year in which the Executive incurred the expenses. The amounts provided under this Section2(b)(v)during any taxable year of the Executives will not affect such amounts provided in any other taxable year of the Executives, and the Executives right to reimbursement for such amounts shall not be subject to liquidation or exchange for any other benefit."
"(v) the Executives willful and material breach of any provision of this Agreement, including, without limitation, the Executives covenants set forth in Section5 hereof. For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered willful unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executives action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of a majority of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is"
"(d) Good Reason. The Executives employment may be terminated by the Executive for Good Reason or by the Executive without Good Reason. For purposes of this Agreement, Good Reason shall mean the occurrence of any one or more of the following events without the Executives prior written consent, unless the Company fully corrects the circumstances constituting Good Reason within thirty (30)days following the date written notice is delivered to the Board by the Executive which specifically identifies the circumstances constituting Good Reason (provided such circumstances are capable of correction):"
"(f) Date of Termination. Date of Termination means (i)if the Executives employment is terminated by the Company without Cause or by reason of the Executives Disability, or by the Executive for Good Reason, the date specified in the Notice of Termination (which date shall not be prior to the expiration of the applicable correction period and shall not be more than sixty (60)days after the giving of such notice), as the case may be, (ii)if the Executives employment is terminated by the Company for Cause, the Date of Termination shall be the date on which the Company notifies the Executive of such termination (or such other date specified by the Company, which date shall not be more than sixty (60)days after the giving of such notice), (iii)if the Executives employment is terminated by the Executive without Good Reason, the Date of Termination shall be the thirtieth (30th)day after the date on which the Executive notifies the Company of such termination, unless otherwise agreed by the Company and the Executive, and (iv)if the Executives employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive."
"(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise."
"8\. Payment of Financial Obligations. The payment or provision to the Executive by the Company of any remuneration, benefits or other financial obligations pursuant to this Agreement shall be allocated to the Company and, if applicable, any subsidiary and/or affiliate thereof in accordance with any agreements to such effect by the Company, as in effect from time to time."
"(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives."
"(k) Right to Advice of Counsel. The Executive acknowledges that he has the right to, and has been advised to, consult with an attorney regarding the execution of this Agreement and any release hereunder; by his signature below, the Executive acknowledges that he understands this right and has either consulted with an attorney regarding the execution of this Agreement or determined not to do so."
"For a valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned does hereby release and forever discharge the Releasees hereunder, consisting of the Company and each of its partners, subsidiaries, associates, affiliates, successors, heirs, assigns, agents, directors, officers, employees, representatives, lawyers, insurers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called Claims), which the undersigned now has or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof.The Claims released herein include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to the employment or termination of employment of the undersigned by the Releasees, or any of them; any alleged breach of any express or implied contract of employment; any alleged torts or other alleged legal restrictions on Releasees right to terminate the employment of the undersigned; and any alleged violation of any federal, state or local statute or ordinance including, without limitation, Title VII of the Civil Rights Act of 1964, the Age Discrimination In Employment Act, the Americans With Disabilities Act, and the California Fair Employment and Housing Act. Notwithstanding the foregoing, this release shall not operate to release the following Claims: (i)Claims based on any right the undersigned may have to enforce the Companys executory obligations under the Agreement; (ii)Claims the undersigned may have to accrued or vested benefits the undersigned may have, if any, as of the date hereof under any applicable plan, policy, practice, program, contract or agreement with the Company; (iii)any Claims, including claims for indemnification and/or advancement of expenses arising under any indemnification agreement between the undersigned and the Company or under the bylaws, certificate of incorporation or other similar governing document of the Company; (iv)any Claims which cannot be waived under applicable law; (v)Claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law; (vi)Claims for workers compensation insurance benefits under the terms of any workers compensation insurance policy or fund of the Company; (vii)the undersigneds right to bring to the attention of the Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing or any other federal, state or local government agency claims of discrimination, or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission or any other federal, state or local government agency; provided, however, that the undersigned does release his or her right to secure any damages for alleged discriminatory treatment; or (viii)with respect to the undersigneds right to communicate"
"(a) Executive shall be assigned with the duties and responsibilities of Chairman and Chief Executive Officer as may reasonably be assigned to Executive from time to time by the Board of Directors of the Company (the Board). While serving as Chairman and Chief Executive Officer, Executive shall perform such duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar executive capacity at a similar company, it being understood that his primary duties shall include the transition of Chief Executive Officer responsibilities to the President and Chief Operating Officer of the Company or other potential successor(s). Effective as of the earlier of (i) the date the Board appoints a successor person or persons as Chairman and/or Chief Executive Officer to assume these roles from Executive and (ii) December 31, 2017 (the Transition Date), Executives employment shall terminate pursuant to Section 7(d) and Executive shall resign from the Board of Directors and as an officer and director of the Companys affiliates as of the Transition Date."
3.4 Termination Without Cause. The Company may terminate Executives employment with the Company at any time without Cause. Any termination by the Company of Executives employment under this Agreement that does not constitute a termination for Cause under Section 3.3 and does not result from Executives death or Executive becoming Disabled under Sections 3.1 or 3.2 shall be deemed a termination without Cause.
"10.1 Notwithstanding anything to the contrary in this Agreement, no separation payments or benefits to be provided to Executive, if any, pursuant to this Agreement that, when considered together with any other separation payments or benefits, are considered deferred compensation under Section 409A (together, the Deferred Payments) will be provided until Executive has a separation from service within the meaning of Section 409A. Similarly, no separation payments or benefits to be provided to Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a separation from service within the meaning of Section 409A. Further, provided that the Release becomes effective and irrevocable in accordance with Sections 5 or 7, as applicable, in the event that the termination of Executives employment occurs at a time during the calendar year when the Release could become effective in the calendar year immediately following the calendar year in which the termination of Executives employment occurs (regardless of which calendar year the Release actually becomes effective and irrevocable), then any severance payments that would be considered Deferred Payments that otherwise are payable between the date of termination of Executives employment and the Release Deadline Date will be paid, or in the case of installments, will commence, on the Release Deadline Date, and any remaining or other severance payments will be paid in accordance with their payment schedule as provided in this Agreement."
10.2 It is intended that none of the severance payments under this Agreement will constitute Deferred Payments but rather will be exempt from Section 409A as payments that would fall within the short-term deferral period as described in Section 10.4 below or resulting from an involuntary separation from service as described in Section 10.5 below. In no event will Executive have discretion to determine the taxable year of payment of any Deferred Payment.
"1.Consideration. In exchange for Employee signing and not revoking this Agreement, Employee will receive: [insert description of the severance executive gets based on the circumstances giving rise to the termination, as set forth above] Employee acknowledges that without this Agreement, Employee is otherwise not entitled to the consideration listed in this section 1."
"13. Protected Activity Not Prohibited. Employee understands that nothing in this Agreement shall in any way limit or prohibit Employee from engaging in any Protected Activity, including filing a charge, complaint, or report with, or otherwise communicating, cooperating, or participating in any investigation or proceeding that may be conducted by, any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (Government Agencies). Employee understands that in "
"14. Nondisparagement. Employee agrees to refrain from any disparagement, defamation, libel, or slander of any of the Releasees, and agrees to refrain from any tortious interference with the contracts and relationships of any of the Releasees. Employee shall direct any inquiries by potential future employers to the Companys human resources department."
"19. Tax Consequences. The Company makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Employee or made on Employees behalf under the terms of this Agreement. Employee agrees and understands that Employee is responsible for payment, if any, of local, state, and/or federal taxes on the payments and any other consideration provided hereunder by the Company and any penalties or assessments thereon. Employee further agrees to indemnify and hold the Releasees harmless from any claims, demands, deficiencies, penalties, interest, assessments, executions, judgments, or recoveries by any government agency against the Company for any amounts claimed due on account of (a) Employees failure to pay or delayed payment of federal or state taxes, or (b) damages sustained by the Company by reason of any such claims, including attorneys fees and costs."
"27. Effective Date. Employee understands that this Agreement shall be null and void if not executed by Employee within twenty-one (21) days. Each Party has seven (7) days after that Party signs this Agreement to revoke it. This Agreement will become effective on the eighth (8th) day after Employee signed this Agreement, so long as it has been signed by the Parties and has not been revoked by either Party before that date (the Effective Date)."
"I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED TERM AND CONSTITUTES AT-WILL EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO OF THE COMPANY. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT THE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY."
"A. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL EMPLOYMENT-RELATED DISPUTES WITH ME, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES THAT I MAY HAVE WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM MY EMPLOYMENT OR RELATIONSHIP WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT OR RELATIONSHIP WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT AND PURSUANT TO THE ARBITRATION PROVISIONS SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 1280 THROUGH 1294.2 (THE CCP ACT) AND CALIFORNIA LAW. I UNDERSTAND THAT I MAY BRING A PROCEEDING AS A PRIVATE ATTORNEY GENERAL, AS PERMITTED BY LAW. THE FEDERAL ARBITRATION ACT GOVERNS THIS AGREEMENT AND SHALL CONTINUE TO APPLY WITH FULL FORCE AND EFFECT, NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN THE CCP ACT AND CALIFORNIA LAW. I AGREE TO ARBITRATE ANY AND ALL COMMON LAW AND/OR STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR CODE, CLAIMS RELATING TO EMPLOYMENT STATUS, CLASSIFICATION AND RELATIONSHIP WITH THE COMPANY, AND CLAIMS OF HARASSMENT, DISCRIMINATION, WRONGFUL TERMINATION, AND BREACH OF CONTRACT, EXCEPT AS PROHIBITED BY LAW. I ALSO AGREE TO ARBITRATE (EXCEPT AS PROHIBITED BY LAW) ANY AND ALL DISPUTES ARISING OUT OF OR RELATING TO THE INTERPRETATION OR APPLICATION OF THIS AGREEMENT TO ARBITRATE, BUT NOT DISPUTES ABOUT THE"
"D. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING, BUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, THE SECURITIES AND EXCHANGE"
"1.Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)"
"Incentive Compensation. During the Term, the Executive shall be eligible to receive cash incentive compensation as determined by the Board or the Compensation Committee from time to time. Commencing on the Amendment Effective Date, the Executives target annual incentive compensation shall be fifty percent (50%) of his Base Salary (the Target Annual Incentive Compensation). Except as otherwise provided herein, to earn incentive compensation, the Executive must be employed by the Company on the day such incentive compensation is paid."
" | 1. | Roles and Duties. ---|---|--- (a) Chief Executive Officer Role. Subject to the terms and conditions of this Agreement, Company shall employ Executive as its Chief Executive Officer (CEO) reporting to Companys Board of Directors (Board). The Executive shall have such duties and responsibilities as are reasonably determined by the Board of Directors and are consistent with the duties customarily performed by a Chief Executive Officer of a similarly situated company in the United States. Executive accepts such employment upon the terms and conditions set forth herein, and agrees to perform such duties and discharge such responsibilities to the best of Executives ability. During Executives employment, Executive shall devote all of Executives business time and energies to the business and affairs of Company. Notwithstanding the foregoing, nothing herein shall preclude Executive from (i)performing services for such other companies as Company may designate or permit; (ii)serving, with the prior written consent of the Board, which consent shall not be unreasonably withheld, as a member of the boards of directors or advisory boards (or their equivalents in the case of a non-corporate entity) of non-competing businesses or charitable, educational or civic organizations; (iii)engaging in charitable activities and community affairs; and (iv)managing Executives personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii)and (iv)shall be limited by Executive so as not to materially interfere, individually or in the aggregate, with the performance of Executives duties and responsibilities hereunder."
"(c) Equity. In addition to the equity awards currently outstanding, Executive will be eligible to be considered for the grant of stock options and/or other equity-based awards commensurate with Executives position and responsibilities. The amount, terms and conditions of any stock option or other equity-based award will be determined by the Board of Directors or an appropriate committee thereof in its discretion and set forth in the applicable equity plan and other documents governing the award."
"(d) Termination as a Result of Executives Disability or Death. If Executives employment hereunder terminates as a result of Executives Disability or death, promptly after such termination Company shall pay to Executive (i)the Accrued Obligations; (ii)any accrued and unpaid Annual Performance Bonus for the prior fiscal year; and (iii)the Pro Rated Bonus (as defined below) and, shall have no further obligations with respect to any benefit or compensation under this Agreement to Executive hereunder. As used in this Section4, Pro Rated Bonus shall mean an amount in cash equal to the target of Annual Performance Bonus for which Executive would have been eligible with respect to the year in which termination of Executives employment occurs multiplied by a fraction, the numerator of which is the number of days during which Executive is employed by Company during the year of termination and the denominator of which is 365."
"entity or parent of such corporation, as the case may be, outstanding immediately after such merger or consolidation; (B)or Companys stockholders approve an agreement for the sale or disposition by Company of all or substantially all of Companys assets; or (iii)Change in Board Composition. A change in the composition of the Board, as a result of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors shall mean directors who either (A)are directors of Company as of the date of this Agreement, or (B)are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors, or by a committee of the Board made up of at least a majority of the Incumbent Directors, at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors)."
"(h) Entire Agreement. This Agreement, together with the other agreements specifically referenced herein, embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement."
"(v)Equity. If a Payment-Triggering Event has not previously occurred and, on or before June 30, 2018, the Company closes an underwritten public offering of any combination of Company securities that includes shares of common stock and Employee has been continuously employed through the Grant Date (defined below), then Employee will receive as soon as practicable after closing of the underwritten public offering (such date, the Grant Date) the following equity awards:"
"(2)Optional Stock Award. If the number of shares underlying the Supplemental Option is determined pursuant to Section 3(a)(v)(1)(y) above, then Employee will receive an additional award of shares of common stock (the Supplemental Stock Award) under the Applicable Plan consisting of a number of shares of the Companys common stock equal to the quotient of (x) the remainder of the Reference Amount after deducting the Option Value, divided by (y) the Fair Market Value (determined in accordance with the terms of the Applicable Plan) of the Companys common stock as of the Grant Date, rounded up to the next whole share. The Supplemental Stock Award may be, but shall not be required to be, subject to vesting terms and conditions established in the sole discretion of the Board or its Compensation Committee in accordance with the terms of the Applicable Plan, after reasonable consultation with Employee. For purposes of this paragraph only, Option Value will equal the product of (x)the Option Reference Price, multiplied by (y)the number of shares of common stock underlying the Supplemental Option."
"This Second Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party hereto and delivered to the other party, it being understood that both parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .pdf format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof. ---|--- "
"4.2 INTERPRETATION. This Agreement shall be interpreted in accordance with the plain meaning of the terms and not strictly for or against either party. This Agreement is intended to comply with Section409A of the Internal Revenue Code and the regulations thereunder (Section409A) and will be interpreted and operated in a manner consistent with that intent. To the extent that any amounts paid to the Employee under this Agreement are subject to Section409A and the Employee is a specified employee, as defined under Section409A, any such amounts payable on account of the Employees separation from service shall be delayed six months following the Employees separation from service to the extent required by"
"2.9 EQUITABLE RELIEF. Employee and the Company agree that in the event of a breach or threatened breach by Employee of any paragraph in Article2 of this Agreement, the Company will not have an adequate remedy at law. Thus, in the event of such a breach or threatened breach, the Company will be entitled to such equitable and injunctive relief as may be available to prevent and restrain Employee from breaching the provisions of any paragraph in Article2\. The availability to obtain injunctive relieve will not prevent the Company from pursuing any other equitable or legal relief, including the recovery of damages from such breach or threatened breach."
"a. the assignment to the Employee of any duties materially inconsistent in any respect with the Employees position (including situs, office and title), authority, duties and responsibilities as contemplated by section. 1.2 of this Agreement, excluding any isolated, insubstantial or inadvertent action not taken in bad faith and which is remedied by the Company promptly after notice of such, action;"
"3.5 CHANGE IN CONTROL. The Company recognizes that the position held by Employee is one of those requiring high quality job performance in order to promote and protect the best interests of the Company. The Company further recognizes that (i) it is possible that a Change in control (as defined herein) could occur at some time in the future, (ii)the uncertainty with such a possibility could result in the distraction of the Employee from his assigned duties and responsibilities, (iii)it is in the best interest of the Employer to assure the continued attention by the Employee to such duties and responsibilities without such distraction, and (iv) Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control without the Employee being influenced in the exercise of his judgment by uncertainties, regarding his future financial security. A Change in Control is defined as any of the following:"
"2.1. Salary. As compensation for the performance of the Executives services hereunder, during the Employment Period, the Company shall pay to the Executive a salary at an annual rate of $250,000, payable in accordance with the Companys standard payroll policies (the Base Salary). The Base Salary will be reviewed annually and may be adjusted upward (but not downward) by the board of directors of the Company (the Board) (or a committee thereof) in its discretion."
"4.6. Proprietary Rights. The Executive shall disclose promptly to the Company any and all inventions, discoveries, and improvements (whether or not patentable or registrable under copyright or similar statutes), and all patentable or copyrightable works, initiated, conceived, discovered, reduced to practice, or made by him, either alone or in conjunction with others, during the Executives employment with the Company and related to the business or activities of the Company Group (the Developments). Except to the extent any rights in any Developments constitute a work made for hire under the U.S. Copyright Act, 17"
"(i)The Employee has executed a general release of all claims in a form prescribed by the Company. The Employee shall execute and return the release on or before the date specified by the Company in the prescribed form (the Release Deadline). The Release Deadline shall in no event be later than 50 days after the Employees Separation. If the Employee fails to return the release on or before the Release Deadline, or if the Employee revokes the release, then the Employee shall not be entitled to the benefits described in this Section6\."
"(iii)A material failure by the Employee to comply with the Companys written policies or rules after receiving written notification of such failure from the Board provided that the Company provides 15 days written notice of the material failure, and the Employee fails to remedy the condition within 15 days after receiving the Companys notice;"
"(a) Executives employment under this Agreement shall terminate upon the earliest to occur of: (i)the expiration of the term of this Agreement pursuant to Section 1 hereof; (ii)Termination due to Disability (as defined below); (iii) termination of Executives employment by the Company for any reason other than Termination due to Disability; (iv)Executives death; or (v)termination of Executives employment by Executive for any reason. Upon the termination of Executives employment with the Company for any reason, Executive shall be deemed to have resigned from the Board and all other positions with the Company or any of its affiliates held by Executive as of the date immediately preceding his termination of employment."
"(a)Term. The Company agrees to employ the Executive, and the Executive hereby accepts such employment commencing as of the Commencement Date and continuing , until terminated in accordance with the provisions of Section3\. The Executives employment with the Company shall be at will, meaning that the Executives employment may be terminated by the Company or the Executive at any time and for any reason subject to the terms of this Agreement. The time period between the Commencement Date and the Date of Termination shall be referred to herein as the Term."
"(c)Stock Options. Subject to final approval by the Board, on or after the Commencement Date, the Company shall grant the Executive an option to purchase a number of shares of the Companys common stock at the shares then fair market value (FMV) which equals two percent (2.0%) of the Companys shares then outstanding on a fully-diluted basis, including for such purposes (i)the exercise of all vested options and warrants and the conversion of all convertible securities, and (ii)the amount of such grant (the Initial Time Based Equity Award). To the extent permitted by the tax laws, the Initial Time Based Equity Award shall be granted in the form of an incentive stock option meeting the requirements of Section422 of the Code except to the extent that the Executive directs that the option be granted in whole or in part in the form of a non-qualified stock option. To induce the Executive to become an employee of the Company, the Executive hereby agrees that, to the extent any of the Initial Time Based Equity Award is required (or elected by the Executive) to be a non-qualified stock option, then such non-qualified stock option may be granted to Executive as an as inducement grant consistent with the requirements of NASDAQ Stock Market Rule 5635(c)(4) instead of pursuant to the Companys existing stock plan. The Initial Time Based Equity Award shall be subject to the terms of and contingent upon Executives execution of a stock option award agreement(s) issued pursuant to the Companys stock plan or otherwise to the extent issued as an inducement grant, including with respect to vesting and exercisability. The Initial Time Based Equity Award shall be subject to time-based vesting for a four-year period starting on the Commencement Date, with 25% of the Initial Time Based Equity Award vesting on the one-year anniversary of the Commencement Date, and then 2.0833% of the Initial Time Based Equity Award vesting on the first day of each month after the one (1)year anniversary of the Commencement Date. : For clarity, any agreement evidencing an equity award by the Company to the Executive will be consistent with, and subject to, the terms of this Agreement."
"harm to the Company or any of its subsidiaries or affiliates if he were retained in his position; (iii)a material breach by the Executive of any of the provisions contained in this Agreement or in Section7 or the Proprietary Rights Agreement; (iv)a material violation by the Executive of the Companys written employment policies; or (v)failure to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Company to cooperate, or the willful destruction or willful failure to preserve documents or other materials known to be relevant to such investigation or the inducement of others to fail to cooperate or to produce documents or other materials in connection with such investigation."
"Executive under Section3(e) without Good Reason, 30 days after the date on which a Notice of Termination is given, and (v)if the Executives employment is terminated by the Executive under Section3(e) with Good Reason, the date on which a Notice of Termination is given after the end of the Cure Period. Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the Company, the Company may unilaterally accelerate the Date of Termination and such acceleration shall not result in a termination by the Company for purposes of this Agreement."
"(iii)upon the Date of Termination, all time-based stock options and other time-based stock-based awards held by the Executive in which the Executive would have vested if he had remained employed for an additional twelve (12)months following the Date of Termination shall vest and become exercisable or nonforfeitable as of the Date of Termination; and"
"16.Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to the Executive at the last address the Executive has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Board. "
"(c) During the Employment Period, Executive shall be eligible to participate, subject to the terms thereof, in all incentive plans and programs of the Company, including such cash and deferred bonus programs and equity incentive plans as may be in effect from time to time with respect to senior executives employed by the Company, on as favorable a basis as other similarly situated senior executives. During the Employment Period, Executive and Executives dependents, as the case may be, shall be eligible to participate, subject to the terms thereof, in all pension and similar benefit plans (including qualified, non-qualified and supplemental plans) and all medical, dental, vision, disability, group and executive life, accidental death and travel accident insurance and other similar welfare benefit plans and programs of the Company as may be in effect from time to time with respect to senior executives employed by the Company, on as favorable a basis as other similarly situated senior executives."
"(a) To the extent any provision of this Agreement or action by the Company would subject Executive to liability for interest or additional taxes under Code Section 409A, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Company. It is intended that this Agreement will comply with Code Section 409A, and this Agreement shall be administered accordingly and interpreted and construed on a basis consistent with such intent. Notwithstanding any provision of this Agreement to the contrary, no termination or similar payments or benefits shall be payable hereunder on account of Executives termination of employment unless such termination constitutes a separation from service within the meaning of Code Section 409A. For purposes of Code Section 409A, all installment payments of deferred compensation made hereunder, or pursuant to another plan or arrangement, shall be deemed to be separate payments. To the extent any reimbursements or in-kind benefit payments under this Agreement are subject to Code Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv). This Agreement may be amended to the extent necessary (including retroactively) by the Company to avoid the application of taxes or interest under Code Section 409A, while maintaining to the maximum extent practicable the original intent of this Agreement. This Section 17 shall not be construed as a guarantee of any particular tax effect for Executives benefits under this Agreement and the Company does not guarantee that any such benefits will satisfy the provisions of Code Section 409A or any other provision of the Code."
(i) the consummation of the acquisition by any person (as such term is defined in Section 13(d) or 14(d) of the 1934 Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of the combined voting power of the then outstanding Voting Securities of the Company; or
"(c) COBRA Benefits. Executive and Executives qualified beneficiaries, as applicable, shall be entitled to continuation of group health coverage following the Termination Date under the Companys group health plan, to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1986, with Executive required to pay the same amount as Executive would pay if Executive continued in employment with the Company during such period as described in Section 4(e) of the Employment Agreement."
"16. Enforcement. The provisions of this Agreement shall be regarded as divisible and separable and if any provision should be declared invalid or unenforceable by a court of competent jurisdiction, the validity and enforceability of the remaining provisions shall not be affected thereby. If the scope of any restriction or requirement contained in this Agreement is too broad to permit enforcement of such restriction or requirement to its full extent, then such restriction or requirement shall be enforced to the maximum extent permitted by law, and Executive hereby consents that any court of competent jurisdiction may so modify such scope in any proceeding brought to enforce such restriction or requirement. In addition, Executive stipulates that breach by Executive of restrictions and requirements under this Agreement will cause "
"17. Construction. In this Agreement, unless otherwise stated, the following uses apply: (a) references to a statute or law refer to the statute or law and any amendments and any successor statutes or laws, and to all regulations promulgated under or implementing the statute or law, as amended, or its successors, as in effect at the relevant time; (b) in computing periods from a specified date to a later specified date, the words from and commencing on (and the like) mean from and including,  and the words to, until, and ending on (and the like) mean to, and including; (c) references to a governmental or quasi-governmental agency, authority, or instrumentality also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality; (d) the words include, includes, and including (and the like) mean include, without limitation, includes, without limitation, and including, without limitation, (and the like) respectively; (e) the words hereof, herein, hereto, hereby, (and the like) refer to this Agreement as a whole; (f) any reference to a document or set of documents, and the rights and obligations of the parties under any such documents, means such document or documents as amended from time to time, and all modifications, extensions, renewals, substitutions, or replacements thereof; (g) all words used shall be construed to be of such gender or number as the circumstances and context require; and (h) the captions and headings of preambles, recitals, sections, and exhibits appearing in or attached to this Agreement have been inserted solely for convenience of reference and shall not be considered a part of this Agreement, nor shall any of them affect the meaning or interpretation of this Agreement or any of its provisions."
"(g) Executive has the right to rescind the Release and Waiver by written notice to the Company within 15 calendar days after Executive has signed this Agreement, and the Release and Waiver shall not become effective or enforceable until 15 calendar days after Executive has signed this Agreement, as evidenced by the date set forth below Executives signature on the signature page hereto. Any such rescission must be in writing and delivered by hand, or sent by U.S. Mail within such 15-day period, to the attention of [_______________]. If delivered by U.S. Mail, the rescission must be: (i) postmarked within the 15-day period and (ii) sent by certified mail, return receipt requested."
"impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) Executive is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident or health plan covering employees of the Company. Whether Executive has incurred a Disability shall be determined by a physician selected by the Company or its insurers. Executive shall be entitled to the compensation and benefits provided for under this Agreement for any period prior to Executives termination by reason of Disability during which Executive is unable to work due to a physical or mental infirmity in accordance with the Companys policies for similarly- situated executives (without duplication of compensation and benefits payable under any applicable disability policies)."
"(f) Termination by Executive for Good Reason. Executive may terminate employment with the Company for Good Reason (as defined below) by delivering to the Company a Notice of Termination not less than thirty (30) days prior to the termination of Executives employment for Good Reason. The Company shall have the option of terminating Executives duties and responsibilities prior to the expiration of such thirty-day notice period. For purposes of this Agreement, Good Reason means voluntary resignation after any of the following actions taken by the Company or any of its subsidiaries without Executives consent: (i) a material reduction of Executives duties and responsibilities to the Company or Executives title or position or reporting (other than any such material reduction resulting from incapacity due to physical or mental illness); (ii) the Companys failure to appoint Executive to the position of Chief Executive Officer on or before December 31, 2017; (iii) a reduction in Base Salary or Target Bonus opportunity (not including any diminution in Base Salary permitted by Section 3(a) of this Agreement); (iv) a material breach by the Company of a material provision of this Agreement; or (v) the Executives removal from, or failure to be nominated or re-elected to, the Board. Executive shall provide notice of the existence of the Good Reason condition within ninety (90) days of the date Executive learns of the condition, and the Company shall have a period of thirty (30) days during which it may remedy the condition, and in case of full remedy such condition shall not be deemed to constitute Good Reason hereunder. In the event the Company is unable to remedy the Good Reason condition in all material respects within the thirty (30) day period, Executive may terminate employment with the Company for Good Reason within thirty (30) days following the expiration of such thirty (30) day period."
"7. Compensation Upon Termination. Executive shall be eligible to receive the compensation under this Section 7 only for any termination of employment occurring (A) prior to the third anniversary of the Effective Date or (B) following a Change in Control (as defined herein), prior to the later of (i) the third anniversary of the Effective Date and (ii) the second anniversary of the Change in Control, in either case, subject to earlier termination as set forth in Section 5. For the avoidance of doubt, the use of Term in this Section 7 shall cover only the period described in the preceding sentence."
"(iii) subject to Executives compliance with Sections 9 and 12(h) hereof, a payment equal to two times the sum of Executives Base Salary and Target Bonus (as defined below) as in effect immediately prior to Executives termination of employment (or if greater, the Base Salary as in effect immediately preceding the occurrence of the Good Reason condition) and such payment shall be made in twenty-four equal monthly installments, with the first installment payable in the first regular payroll occurring following the sixtieth (60th) day following such termination of employment;"
"(I) the acquisition (other than from the Company), by any person (as such term is defined in Section 13(c) or 14(d) of the Securities and Exchange Act of 1934, as amended (the Exchange Act)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of the combined voting power of the Companys then outstanding voting securities; or"
"(e) Proprietary Rights. Executive recognizes that the Company and its Affiliates possess a proprietary interest in all Confidential Information and Work Product and have the exclusive right and privilege to use, protect by copyright, patent or trademark, or otherwise exploit the processes, ideas and concepts described therein to the exclusion of Executive, except as otherwise agreed between the Company and Executive in writing. Executive expressly agrees that any Work Product made or developed by Executive or Executives agents or Affiliates during the course of Executives employment, including any Work Product which is based on or arises out of Work Product, shall be the property of and inure to the exclusive benefit of the Company and its Affiliates. Executive further agrees that all Work Product developed by Executive (whether or not able to be protected by copyright, patent or trademark) during the course of Executives employment, or involving the use of the time, materials or other resources of the Company or any of its Affiliates, shall be promptly disclosed to the Company and shall become the exclusive property of the Company, and Executive shall execute and deliver any and all documents necessary or appropriate to implement the foregoing."
"10. Remedies for Breach of Obligations under Sections 9 or 10 hereof. Executive acknowledges that the Company and its Affiliates will suffer irreparable injury, not readily susceptible of valuation in monetary damages, if Executive breaches Executives obligations under Section 9 hereof. Accordingly, Executive agrees that the Company and its Affiliates will be entitled, in addition to any other available remedies, to obtain injunctive relief in aid of arbitration against any breach or prospective breach by Executive of Executives obligations under Section 9 hereof in any Federal or state court sitting in the state of Delaware, or, at the Companys election, in any other state in which Executive maintains Executives principal residence or Executives principal place of business. Executive hereby submits to the non-exclusive jurisdiction of all those courts for the purposes of any actions or proceedings instituted by the Company or its Affiliates to obtain that injunctive relief in aid of arbitration, and Executive agrees that process in any or all of those actions or proceedings may be served by registered mail, addressed to the last address provided by Executive to the Company, or in any other manner authorized by law."
"At all times during the term of this Agreement and thereafter, Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Employer, including the execution of documents assigning and transferring to Employer all of Employees rights, title and interest in and to such New Developments and the execution of all documents required to enable Employer to file and obtain patents, trademarks, service marks and copyrights in the United States and foreign countries on any of such New Developments."
"(m) All aspects of any arbitration procedure under this Agreement, including the hearing and the record of the proceedings, are confidential and will not be open to the public, except to the extent the parties agree otherwise in writing, or as may be appropriate in any subsequent proceedings between the parties, or as may otherwise be appropriate in response to a governmental agency or legal process or as may be required to be disclosed by Employer pursuant to applicable law, rule or regulation to which Employer is subject, including requirements of the Securities and Exchange Commission and any stock exchanges on which Employers securities are listed."
"During the one year period following cessation of Employees employment with Employer for any reason (or if this period is unenforceable by law, then for such period as shall be enforceable), Employee shall not, without the prior written consent of Employer, accept employment, as an employee, consultant or otherwise, with any company or entity which is a supplier of Employer at any time during the final year of Employees employment with Employer."
"D. Employer may terminate this Agreement immediately, upon written notice to Employee for any reason other than those set forth in Sections 13.A., B. and C., provided, however, that Employer shall have no right to terminate this Agreement under this Section 13.D. within one year after a Change in Control. In addition, Employee may terminate this Agreement immediately, upon written notice to Employer, as a result of a Constructive Termination, provided, however, that Employee shall have no right to terminate this Agreement under this Section 13.D. within one year after a Change in Control. In the event of a termination of this Agreement by Employer, or by Employee as a result of a Constructive Termination, under this Section 13.D.:"
"E. This Agreement shall terminate automatically in the event and at the time that both there is a Change in Control and either (1) Employee elects to terminate his employment with Employer within one year after the Change in Control as a result of a Constructive Termination or (2) Employees employment with Employer is actually terminated by Employer within one year after the Change in Control for any reason other than those set forth in Sections 13.A., B. and C. In the event of a termination of this Agreement under this Section 13.E.:"
"(iii) an amount equal to the sum of (a) any forfeitable benefits of Employee under any nonqualified (i.e., not qualified under Code Section 401(a)) pension, profit sharing, savings or deferred compensation plan of Employer or any Affiliate which would have vested prior to the end of the Current Term if this Agreement had not terminated, plus (b) any additional vested benefits which would have accrued for Employee under any nonqualified defined benefit pension plan if this Agreement had not terminated prior to the end of the Current Term and if Employees annual Base Salary and annual Bonus target had neither"
"(iv) an amount equal to the sum of (a) any forfeitable benefits of Employee under any qualified (i.e., qualified under Code Section 401(a)) pension, profit sharing, 401(k) or deferred compensation plan of Employer or any Affiliate which would have vested prior to the end of the Current Term if this Agreement had not terminated, plus (b) any additional vested benefits which would have accrued for Employee under any qualified defined benefit pension plan if this Agreement had not terminated prior to the end of the Current Term and if Employees annual Base Salary and annual Bonus target had neither increased nor decreased after such termination, shall be paid by Employer from its general assets (and not under such plan or plans) in one lump sum within five days after (and not before) the date which is six months after Employees termination of employment with Employer; and"
"19. Severability. In case anyone or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or other enforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions have never been contained herein. "
"12.3 Disability. For purposes of this Agreement, Disability means that Executive is unable to perform the essential functions of his position (notwithstanding the provision of any reasonable accommodation) by reason of any medically determinable physical or mental impairment which has lasted for a period of one hundred and twenty (120) days during any consecutive six (6) month period."
"13. Dispute Resolution. To ensure the rapid and economical resolution of disputes that may arise in connection with Executives employment with the Company, Executive and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, Executives employment with the Company, or the termination of Executives employment with the Company, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. 1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted in Irvine, California by JAMS, Inc. (JAMS) or its successors by a single arbitrator. Both Executive and the Company acknowledge that by agreeing to this arbitration procedure, they each waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. Any such arbitration proceeding will be governed by JAMS then applicable rules and procedures for employment disputes, which will be provided to Executive upon request. In any such proceeding, the arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law;"
"1.2. Duties. During the Employment Period, the Executive shall serve as Executive Vice President, Corporate Strategy& Business Operations of the Company, and such other positions as an officer or director of the Company and such affiliates of the Company as the Company shall determine from time to time, and shall report directly to Chief Executive Officer. In his position of Executive Vice President, Corporate Strategy& Business Operations, the Executive shall perform duties customary for the President, Products& Technologies Division of a company similar to the Companys size and nature, plus such additional duties, consistent with the foregoing, as the Chief Executive Officer or his designee may reasonably assign."
"4.1. Unauthorized Disclosure. The Executive agrees and understands that in the Executives position with the Company, the Executive has been and will be exposed to and has and will receive information relating to the confidential affairs of the Company Group, including, without limitation, technical information, intellectual property, business and marketing plans, strategies, customer information, software, other information concerning the products, promotions, development, financing, expansion plans, business policies and practices of the Company Group and other forms of information considered by the Company Group to be confidential or in the nature of trade secrets (including, without limitation, ideas, research and development, know-how, formulas, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals) (collectively, the Confidential Information). Confidential Information shall not include information that is generally known to the public or within the relevant trade or industry other than due to the Executives violation of this Section4.1 or disclosure by a third party who is known by the Executive to owe the Company an obligation of confidentiality with respect to such information. The Executive agrees that at all times during the Executives employment with the Company and thereafter, the Executive shall not disclose such Confidential Information, either directly or indirectly, to any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof (each a Person) without the prior written consent of the Company and shall not use or attempt to use any such information in any manner other than in connection with his employment with the Company, unless required by law to disclose such information, in which case the Executive shall provide the Company with written notice of such requirement as far in advance of such anticipated disclosure as possible. This confidentiality covenant has no temporal, geographical or territorial restriction. Upon termination of the Executives employment with the Company, the Executive shall promptly supply to the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other tangible product or document which has been produced by, received by or otherwise submitted to the Executive during or prior to the Executives employment with the Company, and any copies thereof in his (or reasonably capable of being reduced to his) possession; provided that nothing in this Employment Agreement or elsewhere shall prevent the Executive from retaining and utilizing: documents relating to his personal benefits, entitlements and obligations; documents relating to his personal tax obligations; his desk calendar, rolodex, and the like; and such other records and documents as may reasonably be approved by the Company."
"10. Each provision hereof is severable from this Release, and if one or more provisions hereof are declared invalid, the remaining provisions shall nevertheless remain in full force and effect. If any provision of this Release is so broad, in scope, or duration or otherwise, as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable."
"(c) a certificate of the Secretary or Assistant Secretary of the Seller, each of the Originators, each of the Sub-Servicers and Peabody certifying the names and true signatures of its officers who are authorized to sign this Amendment and the other Transaction Documents to which it is a party; provided that, until the Administrator receives a subsequent incumbency certificate from the Seller, the Originators, the Sub-Servicers or Peabody, as the case may be, the Administrator shall be entitled to rely on the last such certificate delivered to it by the Seller, the Originators, the Sub-Servicers or Peabody, as the case may be;"
"(ii) an Unused Fee accruing on each day from and after the date hereof until the Final Payout Date, which Unused Fee for each such day shall be an amount equal to the product of (i)0.80%, multiplied by (ii)the excess, if any, of (A)such Purchaser Groups Group Commitment on such day, over (B)the sum of (1)the aggregate outstanding Group Capital of such Purchaser Group on such day, plus (2)the aggregate LC Participation Amount held by all such LC Participants in such Purchaser Group on such day, multiplied by (iii)1/360;"
"(ii) the failure of any representation, warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement to against amounts owing by the Seller hereunder (even if contingent or unmatured) and (ii)the Servicer against amounts owing by the Servicer hereunder (even if contingent or unmatured)."
"TWENTYMILE COAL, LLC; PEABODY CABALLO MINING, LLC; COALSALES II, LLC; PEABODY POWDER RIVER MINING, LLC; PEABODY HOLDING COMPANY, LLC; PEABODY BEAR RUN MINING, LLC; PEABODY WILD BOAR MINING, LLC; PEABODY GATEWAY NORTH MINING, LLC; PEABODY COALTRADE, LLC; and PEABODY COALSALES, LLC, each, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code,"
"Dilution Ratio means the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of the last day of each calendar month by dividing: (a)the aggregate amount of payments required to be made by the Seller pursuant to Section1.6(e)(i) of the Agreement during such calendar month by (b)the aggregate credit sales made by the Originators during the month that is one month prior to the current month."
"Excluded Taxes means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to any Recipient, (a)Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i)imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Purchaser, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii)that are Other Connection Taxes, (b)in the case of a Purchaser, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Purchaser with respect to an applicable interest in an Investment or Commitment pursuant to a law in effect on the date on which (i)such Purchaser acquires such interest in the Investment or Commitment or (ii)such Lender changes its lending office, except in each case to the extent that, pursuant to Section5.4, amounts with respect to such Taxes were payable either to such Purchasers assignor immediately before such Purchaser became a party hereto or to such Lender immediately before it changed its lending office, (c)Taxes attributable to such Recipients failure to comply with Section5.4(b)(ii) and (d)any U.S. federal withholding Taxes imposed under FATCA."
"Group C Obligor means an Obligor, not a Group A Obligor or a Group B Obligor, with a short-term rating of at least: (a)A-3 by Standard& Poors, or if such Obligor does not have a short-term rating from Standard& Poors, a rating of BBB- to BBB by Standard& Poors on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)P-3 by Moodys, or if such Obligor does not have a short-term rating from Moodys, Baa3 to Baa2 by Moodys on its long-term senior unsecured and uncredit-enhanced debt securities, and any Special Group C Obligor."
"Mohave Project means that certain joint venture that developed, built and operates the Mohave Generating Station located in Laughlin, Nevada, which joint venture is owned by Southern California Edison (56%), Nevada Power Company (14%), Salt River Project Agricultural Improvement and Power District (10%), and Department of Water and Power of Los Angeles (20%)."
"(v) There are no mortgages that are effective as financing statements covering as-extracted collateral that constitutes Purchased Assets and that name any Originator (or, if such Originator is not the record owner of the underlying property, any record owner with respect to such as-extracted collateral, as such term is used in the UCC) as grantor, debtor or words of similar effect filed or recorded in any jurisdiction."
"(c) any representation or warranty made or deemed made by the Seller, Peabody or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Peabody or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 10 Business Days after notice to the Seller or the Servicer of such inaccuracy;"
"(p) an order of the Bankruptcy Court shall be entered in any of the Chapter 11 Cases staying, reversing, vacating, amending, supplementing or otherwise modifying any of the Financing Orders or any member of the Peabody Group shall apply for authority to do so, in each, without the prior written consent of the Administrator and the Majority Purchaser Agents;"
"(s) the filing by any member of the Peabody Group of any motion or proceeding to approve a DIP Facility that grants a lien on (i)the membership interests of the Seller unless the agent for such DIP Facility has entered into and become a party to a No Proceedings Agreement, or (ii)any Pool Assets, in each case without the prior written consent of the Administrator and the Majority Purchaser Agents;"
"(u) the filing by any member of the Peabody Group of any motion or proceeding that could reasonably be expected to result in material impairment of the Administrators or any Purchasers rights under the Transaction Documents; or a final determination by the Bankruptcy Court (or any other court of competent jurisdiction) with respect to any motion or proceeding brought by any other party that results in any material impairment of the Administrators or any Purchasers rights under the Transaction Documents, unless such suit or other proceeding is in connection with the enforcement of the Transaction Documents against the Administrator or any Purchaser Agent;"
"(y) a Final Order shall not have been entered within 45 days following the Filing Date (or such later date as consented to in writing by the Administrator and each Purchaser Agent in their sole and absolute discretion); or from and after the date of entry thereof, the Final Order shall cease to be in full force and effect (or shall have been vacated, stayed, reversed, modified or amended), in each case without the prior written consent of the Administrator and each Purchaser;"
" | (c) | The Seller may, upon at least 30 days written notice to the Administrator, irrevocably reduce the unused portion of the Purchase Limit in whole or in part (but not below the amount that would cause the Aggregate Capital plus the LC Participation Amount to exceed the Purchase Limit or would cause the Group Capital of any Purchaser Group to exceed its Group Commitment, in each case, after giving effect to such reduction); provided, that each partial reduction shall be in the amount of at least $5,000,000, or an integral multiple of $1,000,000 in excess thereof, and that, unless terminated in whole, the Purchase Limit shall in no event be reduced below $50,000,000. Each reduction in the Commitments hereunder shall be made ratably among the Purchasers in accordance with their respective Purchaser Groups Percentages and their respective Commitments. The Administrator shall promptly advise the Purchaser Agents of any notice pursuant to this Section1.1(c); it being understood that (in addition to and without limiting any other requirements for termination, prepayment and/or the funding of the LC Collateral Account hereunder) no such reduction shall be effective unless and until (i)in the case of a reduction of the Purchase Limit in whole to zero ($0), the amount on deposit in the LC Collateral Account is at least equal to the then outstanding LC Participation Amount and (ii)in the case of a partial reduction, the amount on deposit in the LC Collateral Account is at least equal to the difference between the then outstanding LC Participation Amount and the Purchase Limit as so reduced by such partial reduction. ---|---|--- Section1.2 Making Investments; Initial Investment; Joinders; Related Agreements."
" | (a) | Sale of Receivables. In consideration of the payment by each applicable Purchaser of the amount of the applicable Purchaser Groups share of the initial Investment on the date of the initial Investment hereunder, the Committed Purchasers assumption of their respective Commitments and the Administrators agreement (on behalf of the applicable Purchasers) to make payments to the Seller from time to time in accordance with Section1.4 and for other good and valuable consideration, the receipt and sufficiency of which the Seller hereby acknowledges, effective on the Closing Date (without limiting any prior sales pursuant to Section1.3(a) of the Original Agreement, which prior sales are hereby ratified and affirmed), the Seller hereby sells, conveys, transfers and assigns to the Administrator, on behalf of the Purchasers, all of Sellers right, title and interest in and to (i)all Pool Receivables existing on the Closing Date or thereafter arising or acquired by the Seller from time to time prior to the Facility Termination Date and (ii)all Related Security, whether existing on the Closing Date or thereafter arising at any time and acquired by the Seller. ---|---|--- "
" | (f) | LC Participant Investments. Whenever the LC Bank issues a Letter of Credit pursuant to Section1.14 hereof, each LC Participant shall, automatically and without further action of any kind upon the effective date of issuance of such Letter of Credit, have irrevocably deemed to make an Investment hereunder in the event that such Letter of Credit is subsequently drawn and such drawn amount shall not have been reimbursed pursuant to Section1.16 upon such draw. All such Investments shall comprise Base Rate Portions of Capital in an amount equal to the amount of such draw (without regard to the numerical requirements set forth in Section1.2(a)), shall be made ratably by the LC Participants according to their Pro Rata Shares and shall accrue Discount. In the event that any Letter of Credit expires or is surrendered without being drawn (in whole or in part) then, in such event, the foregoing commitment to make Investments shall expire with respect to such Letter of Credit and the LC Participation Amount shall automatically reduce by the amount of the Letter of Credit which is no longer outstanding. ---|---|--- "
" | (g) | Additional Purchasers or Purchaser Groups. The Seller may, with the written consent of the Administrator (and, in the case of a new LC Participant, the LC Bank), which consent may be granted or withheld in their sole discretion, add additional Persons as Purchasers (either to an existing Purchaser Group or by creating new Purchaser Groups) or cause an existing Committed Purchaser or related LC Participant to increase its Commitment in connection with a corresponding increase in the Purchase Limit; provided, that the Commitment of any Committed Purchaser or related LC Participant may only be increased with the prior written consent of such Committed Purchaser or related LC Participant. Each new Conduit Purchaser, Committed Purchaser or related LC Participant (or Purchaser Group) shall become a party hereto, by executing and delivering to the Administrator, each Purchaser Agent and the Seller, an Assumption Agreement in the form of Annex F hereto (which Assumption Agreement shall, in the case of any new Conduit Purchaser, Committed Purchaser or LC Participant, be executed by each Person in such new Purchasers Purchaser Group). ---|---|--- "
"(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchasers ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchasers ratable share of such Collections, such Purchasers Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchasers Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchasers or Exiting Purchasers Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a)of the definition of Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii)above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and"
" | (c) | The Servicer shall, in accordance with the priorities set forth in Section1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section1.6(f)(iii), such other date approved by the Administrator with at least five (5)Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section1.6(b)(i), (ii)or (iii)or 1.6(f); provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof. ---|---|--- "
"(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Assets Coverage Percentage exceeds 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x)the amount (if any) necessary to cause"
"Interim Report are true and correct. For the avoidance of doubt, the Administrator shall have no obligation to remit funds to the Seller or the Servicer or any Affiliate thereof from the Lock-Box Account (or the LC Collateral Account, if applicable) unless the Administrator shall have received a Qualifying Interim Report."
"(ii) does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, purchases, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Person that are not otherwise included in the determination of the Euro-Rate hereunder, or"
"and the result of any of the foregoing is: (A)to increase the cost to such Affected Person of agreeing to purchase or purchasing or maintaining the ownership of, or issuing any Letter of Credit in respect of, the Purchased Assets (or interests therein) or any Portion of Capital, or (B)to reduce any amount receivable hereunder (whether directly or indirectly), then, in any such case, upon demand by such Affected Person, the Seller shall promptly pay to such Affected Person additional amounts necessary to compensate such Affected Person for such additional cost or reduced amount receivable. All such amounts shall be payable as incurred."
"Each LC Participants obligation in accordance with this Agreement to make participation advances as a result of a drawing under a Letter of Credit, and the obligations of the Seller to reimburse the LC Bank upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:"
"(vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;"
"of time or the giving of notice) ~~upon either (i) the occurrence of any event~~ described in paragraph (f)of Exhibit V, ~~other than such an event arising from a Specified Chapter 11 Case, or (ii) if a Specified Chapter 11 Case has occurred, the Bankruptcy Court shall not have entered an Interim Order by May1, 2016.~~the Facility Termination Date shall occur. Upon any such declaration, occurrence or deemed occurrence of the Facility Termination Date, the ~~Purchasers~~ Administrator, the Purchaser Agents and the ~~Administrator~~ Purchasers shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the New York UCC and under other ~~applicable law~~ Applicable Law, which rights and remedies shall be cumulative."
"(i) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in an Information Package to be true and correct on the date thereof (or, if such information is stated therein to be as of a different date, on such different date), or the failure of any other information provided to any Purchaser or the Administrator with respect to Receivables or this Agreement to be true and correct on the date so provided (or, if such information is stated therein to be as of a different date, on such different date),"
" | (c) | Assignments by Certain Committed Purchasers. Any Committed Purchaser may assign to one or more Persons (each a Purchasing Committed Purchaser), reasonably acceptable to the Administrator, the LC Bank and the related Purchaser Agent in its sole discretion, any portion of its Commitment (which shall be inclusive of its Commitment as an LC Participant) pursuant to a supplement hereto, substantially in the form of Annex G with any changes as are reasonably acceptable to the Administrator (each, a Transfer Supplement), executed by each such Purchasing Committed Purchaser, such selling Committed Purchaser, such related Purchaser Agent and the Administrator and with the consent of the Seller (provided, that the consent of the Seller shall not be unreasonably withheld or delayed and that no such consent shall be required if a Termination Event or Unmatured Termination Event has occurred and is continuing; provided, further, that no consent of the Seller shall be required if the assignment is made by any Committed Purchaser to the Administrator, to any Purchaser Agent, to any other Committed Purchaser, to any Affiliate of the Administrator or any Committed Purchaser, to any Program Support Provider or any Person which (i)is in the business of issuing commercial paper notes and (ii)is associated with or administered by the Administrator or any Affiliate of the Administrator). Any such assignment by Committed Purchaser may not be for an amount less than $10,000,000. Upon (i)the execution of the Transfer Supplement, (ii)delivery of an executed copy thereof to the Seller, the Servicer, such related Purchaser Agent and the Administrator and (iii)payment by the Purchasing Committed Purchaser to the selling Committed Purchaser of the agreed purchase price, if any, such selling Committed Purchaser shall be released from its obligations hereunder to the extent of such assignment and such Purchasing Committed Purchaser shall for all purposes be a Committed Purchaser party hereto and shall have all the rights and obligations of a Committed Purchaser hereunder to the same extent as if it were an original party hereto. The amount of the Commitment of the selling Committed Purchaser allocable to such Purchasing Committed Purchaser shall be equal to the amount of the Commitment of the selling Committed Purchaser transferred regardless of the purchase price, if any, paid therefor. ---|---|--- "
" | In the event of any such grant by such Conduit Purchaser of an interest to a Liquidity Bank or other Program Support Provider, such Conduit Purchaser shall remain responsible for the performance of its obligations hereunder. The Seller agrees that each Liquidity Bank and Program Support Provider of any Conduit Purchaser hereunder shall be entitled to the benefits of Sections 1.9 and 1.10. ---|--- "
" | (a) | THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. ---|---|--- "
"This Agreement and the other Transaction Documents are the product of mutual negotiations by the parties thereto and their counsel, and no party shall be deemed the draftsperson of this Agreement or any other Transaction Document or any provision hereof or thereof or to have provided the same. Accordingly, in the event of any inconsistency or ambiguity of any provision of this Agreement or any other Transaction Document, such inconsistency or ambiguity shall not be interpreted against any party because of such partys involvement in the drafting thereof."
"Business Day means any day (other than a Saturday or Sunday) on which: (a)banks are not authorized or required to close in New York City, New York, or Pittsburgh, Pennsylvania and (b)if this definition of Business Day is utilized in connection with the Euro-Rate, dealings are carried out in the London interbank market."
"Days Sales Outstanding means, at any time, an amount computed as of the last day of each calendar month equal to: (a)the average of the Outstanding Balance of all Pool Receivables as of the last day of each of the three most recent calendar months ended on the last day of such calendar month divided by (b)(i)the aggregate credit sales made by the Originators during the three calendar months ended on or before the last day of such calendar month divided by (ii)90\."
"Debt means: (a)indebtedness for borrowed money, (b)obligations evidenced by bonds, debentures, notes or other similar instruments, (c)obligations to pay the deferred purchase price of property or services, (d)obligations as lessee under leases that shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, and (e)obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a)through (d)above."
"(a) the Obligor of which is (i)a United States resident or if such Obligor is not a United States resident: (A)such Pool Receivable results from goods sold and shipped from an Originator in the United States and payment for such goods is denominated and payable only in U.S. dollars to an Originator at a Lock-Box Account, and (B)such Obligor is an Eligible Foreign Obligor, (ii)not subject to any action of the type described in paragraph (f)of Exhibit V to the Agreement, (iii)not an Affiliate of Peabody or any other Originator, (iv)not a Sanctioned Obligor and (v)not an Obligor as to which the Administrator, in its reasonable business judgment, has notified the Seller that such Obligor is not acceptable,"
"(b) the amount (if any) by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool, the Obligors of which are residents of any single country (other than United States of America), exceeds 10.00% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus"
"Loss Reserve means, on any date, an amount equal to: (a)the sum of the Aggregate Capital plus the Adjusted LC Participation Amount at the close of business of the Seller on such date multiplied by (b)(i)the Loss Reserve Percentage on such date divided by (ii)100% minus the Loss Reserve Percentage on such date."
"Majority Purchaser Agents means, at any time, the Purchaser Agents which in their related Purchaser Group have Committed Purchasers whose Commitments aggregate more than 50% of the aggregate of the Commitments of all Committed Purchasers in all Purchaser Groups; provided, that so long as any one Committed Purchasers Commitment is greater than 50% of the aggregate Commitments and there is more than one Purchaser Group, then Majority Purchaser Agents shall mean a minimum of two Purchaser Agents which in their related Purchaser Group have Committed Purchasers whose Commitments aggregate more than 50% of the aggregate Commitment of all Committed Purchasers in all Purchaser Groups."
"provided, however, that no Material Adverse Effect shall be deemed to occur due to any event or circumstance that customarily occurs as a result of events leading up to and following the commencement of a proceeding under chapter 11 of the Bankruptcy Code and the commencement of the Chapter 11 Cases."
"Program Support Provider means and includes, with respect to any Conduit Purchaser, any Liquidity Bank and any other Person (other than any customer of such Conduit Purchaser) now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Purchaser pursuant to any Program Support Agreement."
"Purchaser Group means, (i)for any Conduit Purchaser, such Conduit Purchaser, together with such Conduit Purchasers Committed Purchasers, related Purchaser Agent and related LC Participants and (ii)for any other Purchaser that does not have a related Conduit Purchaser, such Purchaser, together with its Purchaser Agent and each other Purchaser for which such Purchaser Agent acts as a Purchaser Agent hereunder and, in the case of PNC as a Purchaser, the LC Bank."
"Receivable means any indebtedness and other obligations owed to the Seller (as assignee of the Contributor and each Originator), the Contributor or any Originator by, or any right of the Seller, the Contributor or any Originator to payment from or on behalf of, an Obligor, whether constituting an account, chattel paper, instrument or general intangible, arising in connection with the sale of goods or the rendering of services by any Originator, and includes the obligation to pay any finance charges, fees and other charges with respect thereto. Indebtedness and other obligations arising from any one transaction, including indebtedness and other obligations represented by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other obligations arising from any other transaction."
"(d) all of the Sellers, the Contributors and each Originators rights, interests and claims under the Contracts and all guaranties, indemnities, insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable or otherwise."
"Reportable Compliance Event means that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law."
"(d) Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes its legal, valid and binding obligation enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law."
"(n) No Covered Entity is a Sanctioned Person. No Covered Entity, either in its own right or through any third party, (i)has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii)does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii)engages in any dealings or transactions prohibited by any Anti- Terrorism Law."
"(j) Deposits to Lock-Box Accounts. The Seller shall (or shall cause the Servicer to): (i)instruct all Obligors to make payments of all Receivables to one or more Lock-Box Accounts or to post office boxes to which only Lock-Box Banks have access (and shall instruct the Lock-Box Banks to cause all items and amounts relating to such Receivables received in such post office boxes to be removed and deposited into a Lock-Box Account on a daily basis), and (ii)deposit, or cause to be deposited, any Collections received by it, the Servicer or any Originator into Lock-Box Accounts not later than two (2)Business Days after receipt thereof. Each Lock-Box Account shall at all times be subject to a Lock-Box Agreement. The Seller will not (and will not permit the Servicer to) deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Lock-Box Account cash or cash proceeds other than Collections."
"(n) Restricted Payments. (i)Except pursuant to clause (ii)below, the Seller will not: (A)purchase or redeem any shares of its capital stock, (B)declare or pay any dividend or set aside any funds for any such purpose, (C)prepay, purchase or redeem any Debt, (D)lend or advance any funds or (E)repay any loans or advances to, for or from any of its Affiliates (the amounts described in clauses (A)through (E)being referred to as Restricted Payments)."
"(iv) as to the Servicer only, as soon as available and in any event not later than two Business Days prior to the Monthly Settlement Date, an Information Package as of the most recently completed calendar month or, if in the opinion of the Administrator reasonable grounds for insecurity exist with respect to the collectibility of the Pool Receivables or with respect to the Seller or Servicers performance or ability to perform its obligations under the Agreement, within six Business Days of a request by the Administrator, an Information Package for such periods as is specified by the Administrator (but in no event more frequently than weekly);"
"(vi) promptly after the sending or filing thereof, copies of all reports that Peabody sends to any of its security holders, and copies of all reports and registration statements that Peabody or any Subsidiary files with the Securities and Exchange Commission or any national securities exchange; provided, that any filings with the Securities and Exchange Commission that have been granted confidential treatment shall be provided promptly after such filings have become publicly available; provided, that any material required to be delivered pursuant to this Section (2)(l)(vi)shall be deemed to have been furnished to each of the Administrator and each Purchaser Agent on the date that such material is posted on the SECs website at www.sec.gov;"
" | (i) | the representations and warranties contained in Exhibit III to the Receivables Purchase Agreement are true and correct in all material respects (except to the extent that such representations and warranties expressly relate to an earlier date, and in which case such representations and warranties are true and correct in all material respects as of such earlier date); ---|---|--- "
"The Seller and various others are parties to that certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of March25, 2016 (as amended, restated, supplemented or otherwise modified through the date hereof, the Receivables Purchase Agreement). Capitalized terms used and not otherwise defined herein have the respective meaning assigned to such terms in the Receivables Purchase Agreement."
"(j)Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Companys or its Subsidiaries employees is a member of a union that relates to such employees relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
(cc) Acknowledgment Regarding Purchasers Purchase of the Shares. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arms length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers purchase of the Shares. The Company further represents to each Purchaser that the Companys decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
"(ii)Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the Money Laundering Laws), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company and any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened."
"(f)Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment."
"4.5Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Companys debt (other than payment of trade payables in the ordinary course of the Companys business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations."
"4.9Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Companys securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality to the Company or its Subsidiaries after the issuance of the initial disclosure of the transaction. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchasers assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchasers assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement."
"5.7No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.6 and this Section 5.7."
"(iii) a Warrant, free and clear of all restrictive and other legends (except as expressly provided in Section4.1(b) hereof), pursuant to which such Investor shall have the right to acquire such number of Warrant Shares set forth opposite such Investors name on ExhibitA hereto under the heading Warrant Shares, registered in the name of such Investor (or its designee);"
"(a) Subsidiaries. The Company has no Subsidiaries other than those listed in Schedule3.1(a) hereto. Except as disclosed in Schedule3.1(a) hereto, the Company owns, directly or indirectly, all of the capital stock or comparable equity interests of each Subsidiary free and clear of any Lien, all the issued and outstanding shares of capital stock or comparable equity interest of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights."
"(b) Organization and Qualification. Except as disclosed in Schedule3.1(b), each of the Company and the Subsidiaries is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite corporate authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Except as disclosed in Schedule3.1(b), each of the Company and the Subsidiaries is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect."
"(aa) Listing and Maintenance Requirements. The Company has not, in the twenty- four (24)months preceding the date hereof, received notice (written or oral) from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is in compliance in all material respects with all such listing and maintenance requirements."
"(f) No Conflicts. The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby will not (i)result in a violation of the organizational documents of such Investor or (ii)conflict with, or constitute a default (or an event which with notice or lapse of time or"
"securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act. Notwithstanding the foregoing, the Company hereby consents to and agrees to register on the books of the Company and with its Transfer Agent, without any such legal opinion, any transfer of Securities by an Investor to an Affiliate of such Investor, provided that the transferee certifies to the Company that it is an accredited investor as defined in Rule 501(a) under the Securities Act and provided that such Affiliate does not request any removal of any existing legends on any certificate evidencing the Securities. The Company shall cause its counsel to provide any legal opinions required by its transfer agent."
"THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS."
"(d) Should an Event (as defined below) occur, then upon the occurrence of such Event, and on every monthly anniversary thereof until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as liquidated damages and not as a penalty, equal to two percent (2.0%) of the aggregate Purchase Price of the Registrable Securities then held by the Investor; provided, however, that the total amount of payments pursuant to this Section5.1(d) shall not exceed, when aggregated with all such payments paid to all Investors, ten percent (10%) of the aggregate Purchase Price hereunder; provided, further, that Events occurring pursuant to clause(iv) of such definition shall not count toward, or be subject to such ten percent (10%) cap. The payments to which an Investor shall be entitled pursuant to this Section5.1(d) are referred to herein as Event Payments. Any Event Payments payable pursuant to the terms hereof shall apply on a pro-rated basis for any portion of a month prior to the cure of an Event. In the event the Company fails to make Event Payments in a timely manner, such Event Payments shall bear interest at the rate of one and a half percent (1.5%) per month (prorated for partial months) until paid in full. All pro-rated calculations made pursuant to this paragraph shall be based upon the actual number of days in such pro-rated month."
"(ii) except as provided for in Section5.1(e) (the Excluded Events), after the Effective Date of a Registration Statement, an Investor is not permitted to sell Registrable Securities under the Registration Statement (or a subsequent Registration Statement filed in replacement thereof) for any reason (other than the fault of such Investor) for five (5)or more Trading Days (whether or not consecutive);"
"(c) Notify the Investors as promptly as reasonably possible, and if requested by the Investors, confirm such notice in writing no later than two Trading Days thereafter, of any of the following events: (i)the SEC notifies the Company whether there will be a review of any Registration Statement; (ii)any Registration Statement or any post-effective amendment is declared effective; (iii)the SEC issues any stop order suspending the effectiveness of any Registration Statement or initiates any Proceedings for that purpose; (iv)the Company receives notice of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threat of any Proceeding for such purpose; or (v)the financial statements included in any Registration Statement become ineligible for inclusion therein or any Registration Statement or Prospectus or other document contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading."
"(g) (i)In the time and manner required by each Trading Market on which the Common Stock is listed, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii)take all steps necessary to cause such Registrable Securities to be approved for listing on each such Trading Market as soon as possible thereafter; (iii)provide to each Investor evidence of such approval; and (iv)except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market."
"5.6 Piggy-Back Registrations. If at any time during the Effectiveness Period there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on FormS-4 or FormS-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to each Investor not then eligible to sell all of their Registrable Securities without restriction or limitation under Rule144 (including, without limitation, requirement to be in compliance with Rule144(c)(1)), written notice of such determination and if, within ten days after receipt of such notice, any such Investor shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Investor requests to be registered. Notwithstanding the foregoing, in the event that, in connection with any underwritten public offering, the managing underwriter(s) thereof shall impose a limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s) judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which such Investor has requested inclusion hereunder as the underwriter shall permit; provided, however, that (i)the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not contractually entitled to inclusion of such securities in such Registration Statement or are not contractually entitled to pro rata inclusion with the Registrable Securities and (ii)after giving effect to the immediately preceding proviso, any such exclusion of Registrable Securities shall be made pro rata among the Investors seeking to include Registrable Securities and the holders of other securities having the contractual right to inclusion of their securities in such Registration Statement by reason of demand registration rights, in proportion to the number of Registrable Securities or other securities, as applicable, sought to be included by each such Investor or other holder. If an offering in connection with which an Investor is entitled to registration under this Section5.6 is an underwritten offering, then each Investor whose Registrable Securities are included in such Registration Statement shall, unless otherwise agreed by the Company, offer and sell such Registrable Securities in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this Agreement, on the same terms and conditions as other shares of Common Stock included in such underwritten offering and shall enter into an underwriting agreement in a form and substance reasonably satisfactory to the Company and the underwriter or underwriters. Upon the effectiveness the registration statement for which piggy-back registration has been provided in this Section5.6, any Event Payments payable to an Investor whose Securities are included in such registration statement shall terminate."
"6.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or email attachment, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or email-attached signature page were an original thereof."
"3.Closing. The closing of the purchase and sale of the Debenture shall take place at the offices of the Company 12555 Orange Drive, Suite 216, Davie, Florida 33330, upon confirmation that the conditions to closing specified herein have been satisfied or duly waived by the Investor or the Company, as applicable or at such other location and on such other date as the Company and the Investor shall mutually agree (the Closing Date)."
"5.10Brokers and Finders. No Person will have as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of such Investor."
"(2) This amount is derived from the Development Consulting agreement effective date November 1, 2015. Consulting fees of $12,000.00 per month on the first of each month per the terms of the agreement. Further if Development Consulting continues beyond the 120 day period  fees will remain the same monthly amount for each additional month of service."
"Section 4.4COMMON STOCK. To the best of its knowledge, the Company is in full compliance with all reporting requirements of the Exchange Act, and the Company has maintained all requirements for the continued listing or quotation of the Common Stock, and such Common Stock is currently listed or quoted on the Principal Market which is presently the OTC Pink."
"Section 4.7NO CONFLICTS. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby, including without limitation the issuance of the Put Shares, do not and will not (a) result in a violation of the Companys Certificate of Incorporation or By-Laws or (b) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture, instrument or any ""lock-up"" or similar provision of any underwriting or similar agreement to which the Company is a party, or (c) result in a violation of any federal, state or local law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or asset of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect) nor is the Company otherwise materially in violation of, conflict with or in default under any of the foregoing. The business of the Company is not being conducted in violation of any law, ordinance or regulation of any governmental entity, except for possible violations that either singly or in the aggregate do not and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or issue and sell the Common Stock in accordance with the terms hereof (other than any SEC, FINRA or state securities filings that may be required to be made by the Company subsequent to any Closing, or any registration statement that may be filed pursuant hereto); provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of Investor herein."
"Section 5.2SHORT SALES AND CONFIDENTIALITY. Neither Investor nor any trading affiliate will execute any Short Sales during the period from the date hereof to the end of the Commitment Period. For the purposes hereof, and in accordance with Regulation SHO, the sale after delivery of a Put Notice of such number of shares of Common Stock reasonably expected to be purchased under a Put Notice shall not be deemed a Short Sale."
"(a) EFFECTIVE REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall remain effective for the sale by Investor of the Registered Securities subject to such Put Notice, and (i) neither the Company nor Investor shall have received notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened to do so and (ii) no other suspension of the use or withdrawal of the effectiveness of such Registration Statement or related prospectus shall exist."
"(f) NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have been suspended by the SEC, the Principal Market or the FINRA and the Common Stock shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market."
"(iii)If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate."
"Section 10.9 SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any party."
"1\. The representations and warranties of the Company are true and correct in all material respects as of the Condition Satisfaction Date as though made on the Condition Satisfaction Date (except for representations and warranties specifically made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Condition Satisfaction Date, except for any conditions which have temporarily caused any representations or warranties of the Company set forth in the Agreement to be incorrect and which have been corrected with no continuing impairment to the Company or Investor; and"
"(m) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, Hazardous Materials) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (Environmental Laws); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect."
"(n) Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (Material Permits), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit."
"(nn) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the BHCA) and to regulation by the Board of Governors of the Federal Reserve System (the Federal Reserve). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve."
"(a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law."
"NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES."
"(f) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 4.1 and the Company is required to deliver such unlegended shares, (i) the Company shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, transfer agent fees and overnight delivery charges and pay clearing firm charges in connection with the legend removal; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchasers obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 15% of the amount of the aggregate purchase price of the Shares and Commitment Shares which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the trading day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchasers favor."
"5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8."
"5.9 Governing Law; Exclusive Jurisdiction; Attorneys Fees. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York, New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company elsewhere in this Agreement, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding."
"5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .pdf format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof."
"SECTION 2.6 No Violation. The execution and delivery of this Agreement and the performance by the Company of the transactions contemplated hereby will not (i) conflict with or result in a breach of any provision of the Articles of Incorporation or By-laws of the Company, (ii) result in a default or breach of any consent, approval, authorization or permit of, or filing or notification to, any person, company or entity under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, loan, factoring arrangement, license, agreement, lease or other instrument or obligation to which the Company is a party or by which the Company or any of its assets may be bound or (iii) violate any law, judgment, order, writ, injunction, decree, statute, rule or regulation of any court, administrative agency, bureau, board, commission, office, authority, department or other governmental entity applicable to the Company, except, in the case of clause (ii) or (iii) above, any such event that could not reasonably be expected to have a Material Adverse Effect or materially impair the transactions contemplated hereby."
"SECTION 2.8 Certain Developments. Since December 31, 2015, there have been the following (i) material adverse change in the condition, financial or otherwise, of the Company or in the assets, liabilities, properties or business of the Company; (ii) declaration, setting aside or payment of any dividend or other distribution with respect to, or any direct or indirect redemption or acquisition of, any capital stock of the Company; (iii) waiver of any valuable right of the Company or cancellation of any material debt or claim held by the Company; (iv) material loss, destruction or damage to any property of the Company, whether or not insured; (v) acquisition or disposition of any material assets (or any contract or arrangement therefor) or any other material transaction by the Company otherwise than for fair value in the ordinary course of business consistent with past practice; or (vi) other agreement or understanding, whether in writing or otherwise, for the Company to take any action of the type specified in clauses"
"(e) No representations or warranties have been made to the Investor by the Company or any director, officer, employee, agent or affiliate of the Company, other than the representations and warranties of the Company set forth herein, and the decision of the Investor to purchase the Warrant is based on the Investors own independent investigation of the Company."
"SECTION 3.5 Governmental Consents. The execution and delivery by the Investor of this Agreement and the performance by such Investor of the transactions contemplated hereby, do not and will not require the Investor to effectuate or obtain any registration with, consent or approval of, or notice to any federal state or other governmental authority or regulatory body."
"(b) The Investor will furnish to the Company in writing all information reasonably requested by the Company for use in connection with the preparation of the Registration Statement and obtaining the effectiveness thereof. Each Investor hereby represents and warrants, severally but not jointly, that all such information furnished by it shall be true, accurate and complete."
"(d) To the extent not inconsistent with applicable law, the Investor agrees that, in connection with any registered public offering of the Companys equity securities, it will not effect any public sale or distribution of any of the Shares underlying the Warrant, including a sale pursuant to Rule 144 under the Securities Act, during the 10 days prior to, and during the 90 days beginning on, the effective date of the Companys registration statement (except as part of such registration) with respect to such registered public offering, if and to the extent reasonably requested by the Company in writing in the case of a non-underwritten public offering or to the extent reasonably requested by the underwriter in the case of an underwritten public offering."
"(a) Indemnification. Each party (including its officers, directors, employees, affiliates, agents, successors and assigns (each an Indemnified Party)) shall be indemnified and held harmless by the other parties hereto (each an Indemnifying Party) for any and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys fees and expenses) actually suffered or incurred by them (hereinafter a Loss), arising out of or resulting from the breach of any representation or warranty made by an Indemnifying Party contained in this Agreement. Notwithstanding the foregoing, the aggregate liability of the Investor under this Article V shall in no event exceed fifty percent (50%) of the purchase price paid by such Investor for the Shares and the Warrants purchased under this Agreement and the aggregate liability of the Company under this Article V shall in no event exceed fifty percent (50%) of the purchase price paid by the Investors for the Warrants, except that the Companys liability for a violation of any of the representations and warranties contained in the first two sentences of Section 2.7 may exceed such limitation, but shall in no event exceed one hundred percent (100%) of the purchase price paid by the Investors for the Shares and the Warrants."
"(c) The Company shall not be responsible to pay any expenses incurred by the Holder in connection with taxes and other governmental charges other than income taxes of the Holder that may be imposed in respect of, the issue or delivery of any Shares issuable upon the exercise of the Warrant evidenced hereby. The Company shall be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for the Shares of Common Stock, as the case may be, in any name other than that of the registered holder of the Warrant evidenced hereby."
"(d) In connection with the exercise of any Shares underlying the Warrant evidenced hereby, no fractions of shares of Common Stock shall be issued, but in lieu thereof the Company shall pay a cash adjustment in respect of such fractional interest in an amount equal to such fractional interest multiplied by the Market Price for one share of Common Stock on the Business Day which immediately precedes the day of exercise. If more than one (1) such Warrant shall be exercised by the holder thereof at the same time, the number of full Shares of Common Stock issuable on such exercise shall be computed on the basis of the total number of Shares so exercised."
"(iii) Reorganization, etc. If at any time after the date of issuance of this Warrant any consolidation of the Company with or merger of the Company with or into any other Person (other than a merger or consolidation in which the Company is the surviving or continuing corporation and which does not result in any reclassification of, or change (other than a change in par value or from par value to no par value or from no par value to par value, or as a result of a subdivision or combination) in, outstanding shares of Common Stock) or any sale, lease or other transfer of all or substantially all of the assets of the Company to any other person (each, a Reorganization Event), shall be effected in such a way that the holders of the Common Stock shall be entitled to receive cash, stock, other securities or assets (whether such cash, stock, other securities or assets are issued or distributed by the Company or another Person) with respect to or in exchange for the Common Stock, then, upon exercise of this Warrant, the Holder shall thereafter have the right to receive only the kind and amount of cash, stock, other securities or assets receivable upon such Reorganization Event by a holder of the number of Shares of the Common Stock that such holder would have been entitled to receive upon exercise of this Warrant had this Warrant been exercised immediately before such Reorganization Event, subject to adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 2(a). The Company shall not enter into any of the transactions referred to in this Section 2(a)(iii) unless effective provision shall be made so as to give effect to the provisions set forth in this Section 2(a)(iii)."
"Section 13\. Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by registered or certified first-class mail, return receipt requested, courier services or personal delivery, (a) if to the Holder of a Warrant, at such Holders last known address appearing on the books of the Company; and (b) if to the Company, at its principal executive office in the United States, or such other address as shall have been furnished to the party given or making such notice, demand or other communication. All such notices and communications shall be deemed to have been duly given: (i) when delivered by hand, if personally delivered; (ii) when delivered to a courier if delivered by commercial overnight courier service; and (iii) five (5) Business Days after being deposited in the mail, postage prepaid if mailed."
"(e)Bankruptcy. Any Company or any of its Subsidiaries shall (i) apply for, consent to or suffer to exist the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of creditors, (iii) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v)file a petition seeking to take advantage of any other law providing for the relief of debtors, (vi) acquiesce to, without challenge within fifteen (15) days of the filing thereof, or failure to have dismissed, within forty-five (45) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (vii) take any action for the purpose of effecting any of the foregoing;"
"2.11Construction; Counterparts. Each party acknowledges that its legal counsel participated in the preparation of this Note and, therefore, stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Note to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (ii) the words hereof, herein and words to similar effect refer to this Note in its entirety, and (iii) the use of the word including in this Note shall be by way of example rather than limitation. This Note may be executed by the parties hereto in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Any signature delivered by a party by facsimile or electronic transmission shall be deemed to be an original signature hereto."
"6. There is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement, and no actions, suits or proceedings will be in progress, pending or, to Companys knowledge threatened, by any person other than Purchaser or any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated by this Agreement."
"restricted securities within the meaning of the Act and will be issued to the Purchaser in accordance with Regulation S of the Act. Purchaser and Company agree that Company will refuse to register any transfer of the Securities, not made in accordance with the provisions of Regulation S of the Act, pursuant to registration under the Act, pursuant to an available exemption from registration, or pursuant to this Agreement. If Purchaser is not a United States person (as defined by Section 7701(a)(30) of the U.S. Internal Revenue Code), Purchaser hereby represents that Purchaser has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to acquire the Securities or any use of this Agreement, including (aa) the legal requirements within its jurisdiction for the purchase of the Securities, (bb) any foreign exchange restrictions applicable to such purchase, (cc) any governmental or other consents that may need to be obtained, and (dd) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities. Purchaser represents that Purchaser's payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of Purchaser's jurisdiction."
"C. Ownership Restrictions. Company and the Purchaser agree that, notwithstanding any other provision in this Agreement or the Certificate of Designations, at no time may the Preferred Shares be converted if the number of shares of Common Stock to be received by the Purchaser pursuant to such conversion, when aggregated with all other shares of Common Stock then beneficially (or deemed beneficially) owned by the Purchaser, would result in the Purchaser beneficially owning more than 4.9% of all Common Stock outstanding as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder."
"I. Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of Purchaser and Company will be entitled to specific performance under the Transaction Documents, and injunctive relief to prevent any actual or threatened breach under the Transaction Documents, to the full extent permitted under federal and state securities laws."
"The following resolutions were duly adopted by the Board of Directors at a special meeting of the Board of Directors held on April 29, 2016 and in accordance with the Corporations Certificate of Incorporation and with the provisions of Section 151 of the Delaware General Corporation Law, which resolutions remain in full force and effect on the date hereof:"
"NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of Preferred Stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of Preferred Stock as follows:"
3. The Corporation will not have the power to effect a Deemed Liquidation Event referred to in Section I.D.2 unless the agreement or plan of merger or consolidation for such transaction provides that the consideration payable to the stockholders of the Corporation will be allocated among the holders of capital stock of the Corporation in accordance with Section I.E.
"1. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, after payment or provision for payment of debts and other liabilities of the Corporation, pari passu with any distribution or payment made to the holders of Common Stock by reason of their ownership thereof, the Holders of Series G Preferred Stock will be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders an amount with respect to each share of Series G Preferred Stock equal to (without duplication): (a) the Original Issue Price, plus (b) any accrued but unpaid dividends thereon. If, upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the amounts payable with respect to the shares of Series G Preferred Stock are not paid in full, the holders of shares of Series G Preferred Stock will share equally and ratably with the holders of shares of Common Stock in any distribution of assets of the Corporation in proportion to the liquidation preference and an amount equal to all accumulated and unpaid dividends, if any, to which each such holder is entitled.2. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation will be insufficient to make payment in full to all Holders, then such assets will be distributed among the Holders at the time outstanding, ratably in proportion to the full amounts to which they would otherwise be respectively entitled."
"of its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately adjusted and the number of Conversion Shares will be proportionately increased. If the Corporation at any time on or after such Issuance Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately adjusted and the number of Conversion Shares will be proportionately decreased. Any adjustment under this Section 3 shall become effective at the close of business on the date the subdivision or combination becomes effective."
"Legal Requirement means any United States federal, state or local or foreign law, statute, standard, ordinance, code, rule, regulation, guidance, resolution or promulgation, or any Governmental Order, or any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision having the force or effect of law."
"Ordinary Course of Business means an action taken by any Person in the ordinary course of such Persons business which is consistent with the past customs and practices of such Person (including past practice with respect to quantity, amount, magnitude and frequency, standard employment and payroll policies and past practice with respect to management of working capital) which is taken in the ordinary course of the normal day-to-day operations of such Person."
"2.1.2 At the Second Closing Date, subject to the terms and conditions of this Agreement, the Sellers will sell, transfer and deliver to the Buyer, and the Buyer will purchase from the Sellers set forth on Exhibit A, the Second Closing Shares, free and clear of all Encumbrances. In exchange for the Second Closing Shares, at Closing, the Buyer will issue the Nukk Second Closing Shares to the Sellers in the individual amounts set forth on Exhibit A and agree to make the Net Income Distribution set forth and subject to the limitations under Section 6.12 of this Agreement."
"3.2 Power and Authorization. The execution, delivery and performance by each Acquired Company of this Agreement to which it is (or will be) a party and the consummation of the Contemplated Transactions are within the power and authority of the Company and have been duly authorized by all necessary action on the part of the Company. The officers and directors of the Company and each Acquired Company are set forth on Schedule 3.1. This Agreement (a) has been duly executed and delivered by the Company and (b) is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by equitable principles or by bankruptcy,"
"3.4 Noncontravention. To the Companys Knowledge, neither the execution, delivery and performance by an Acquired Company of this Agreement to which it is (or will be) a party nor the consummation of the Contemplated Transactions will: (a) assuming the taking of any action by (including any authorization, consent or approval), or in respect of, or any filing with, any Governmental Authority, violate any Legal Requirement applicable to an Acquired Company; (b) result in a breach or violation of, or default under, any contractual obligation of any Acquired Company; (c) require any action by (including any authorization, consent or approval) or in respect of (including notice to), any Person under any contractual obligation of any Acquired Company; (d) result in the creation or imposition of an Encumbrance upon, or the forfeiture of, any Asset; or (e) result in a breach or violation of, or default under, the organizational documents of any Acquired Company, except with respect to clauses (a), (b), (c) or (d) where such violation, breach, or failure to take such action would not have a Material Adverse Effect."
"3.5 Capitalization of the Acquired Companies. As of the date of this Agreement, the entire authorized capital stock of each Acquired Company is as set forth in the [Most Recent Balance Sheet]. As of the date hereof and as of the Closing Date, the entire issued and outstanding shares of capital stock of the Company consists of 22,200 shares of Common Stock. All of the outstanding shares of capital stock of each Acquired Company have been duly authorized, validly issued, and are fully paid and non-assessable. None of the Acquired Companies has violated any preemptive or other similar rights of any Person in connection with the issuance or redemption of any of its equity interests. The Acquired Companies hold no shares of their respective capital stock in their respective treasuries. The Shares represent all of the issued and outstanding shares of capital stock of the Company. All of the outstanding equity interests in each of the Companys Subsidiaries are set forth on Schedule 3.1 and are validly issued, fully paid and non-assessable. The Company is the beneficial owner (and the Company or the Companys Subsidiary listed on Schedule 3.1 is the record owner) of all of the equity"
"3.7 Absence of Undisclosed Liabilities. No Acquired Company has any Liabilities except for (a) Liabilities covered by the Audited Financials and (b) Liabilities incurred in the Ordinary Course of Business, including in connection with the Contemplated Transactions, since the date of the Audited Financials (none of which results from, arises out of, or relates to any breach or violation of, or default under, a contractual obligation or Legal Requirement which would not have a Material Adverse Effect)."
"(e) any contractual obligation under which an Acquired Company is, or may become, obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (i) acquisition or disposition of assets or securities (other than the sale of inventory in the Ordinary Course of Business), (ii) merger, consolidation or other business combination or (iii) series or group of related transactions or events of the type specified in clauses (i) and (ii) above."
"Since January 1, 2015, Buyer has not timely filed (including any extension permitted under the SECs rules) or otherwise furnished (as applicable) all registration statements, prospectuses, forms, reports, definitive proxy statements, schedules, statements and documents required to be filed or furnished by it under the 1933 Act or the Securities Exchange Act of 1934 (the Exchange Act), as the case may be, together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002 (the Sarbanes Oxley Act) such documents and any other documents filed by Buyer with the SEC, as have been supplemented, modified or amended since the time of filing, collectively, the Buyer SEC Documents). Buyer has made available to the Company and the Sellers true and complete copies of the Buyer SEC Documents filed by Buyer with the SEC."
"accuracy of the representations and warranties of Sellers set forth in Section 4, the Buyer has not violated and in entering into and effecting the Contemplated Transactions will not violate, the 1933 Act, the Exchange Act, any state blue sky or securities laws, any other similar Legal Requirement or any preemptive or other similar rights of any Person in connection with the issuance of the Nukk Securities. Except as disclosed in the Buyer SEC Documents or as otherwise contemplated by this Agreement: (a) there are no preemptive rights or other similar rights in respect of any equity interests in the Buyer, (b) there is no contractual obligation, or provision in the organizational documents of the Buyer which obligates the Buyer to purchase, redeem or otherwise acquire, or make any payment (including any dividend or distribution) in respect of any equity interests in the Buyer, and (c) there are no existing rights with respect to registration under the 1933 Act of any equity interests in the Buyer. Except as set forth in the Buyer SEC Documents or as otherwise contemplated by this Agreement, as of the date of this Agreement, there are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to any equity interests in the Buyer or obligating the Buyer to issue or sell any interest in the Buyer."
"6.3 Notices and Consents; Cooperation. The Acquired Companies shall and the Sellers shall cause the Acquired Companies to give all notices to, make all filings with and use their commercially reasonable efforts to obtain all authorizations, consents or approvals from, any Governmental Authority or other Person that are describe in Section 3.3 above or as otherwise reasonably requested by the Buyer. The Buyer will give all notices to, make all filings with and use its commercially reasonable efforts to obtain all authorizations, consents or approvals from, any Governmental Authority or other Person that are described in Section 3.3 above or as otherwise reasonably requested by the Company. From the date of this Agreement until the Second Closing or the earlier termination of this Agreement in accordance with its terms, each party hereto shall, subject to applicable law and except as prohibited by any applicable representative of any applicable Governmental Authority: (1) furnish to the other parties upon reasonable request all information concerning itself, its Subsidiaries, directors, officers and equity holders and (2) take such other actions as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other party or any of its Subsidiaries with or to any third party or Governmental Authority in connection with the Contemplated Transactions"
"6.4 Buyers Access to Premises; Information. From the date of this Agreement until the earlier of the Second Closing or the termina8ion of this Agreement pursuant to Section 9, the Acquired Companies will permit the Buyer and its Representatives to have full access (at reasonable times and upon reasonable notice) to all officers of the Acquired Companies and to all premises, properties, books, records (including Tax records), contracts, financial and operating data and information and documents pertaining to the Acquired Companies and make copies of such books, records, contracts, data, information and documents as the Buyer or its"
"by Currency Mountain Holdings LLC including Emil Assentato (Co-Chairman), Craig Marshak (Vice-Chairman) and an individual to be identified and three members appointed by the Sellers representing a majority of the Shares including Markos Kashiouris (Co-Chairman), Peter Economides and Stathis Christophi. Currency Mountain Holdings Bermuda Ltd. [?] and the Sellers representing a majority of the Shares will retain the right to appoint these members for a period of three years from the Second Closing Date. For a period of three years after the Second Closing Date, an approval vote of the Board representing a minimum of 83% of the members will be acquired to approve any transaction in excess of $10,000,000. For a period of three years after the First Closing Date, all cash transfers in excess of $100,000 by the Buyer will need to be approved by Emil Assentato. During the period from the First Closing Date until the Second Closing Date, the Buyer will not be permitted to sell, assign or transfer Iron Australia without the express written approval of Markos Kashiouris and all proceeds from such sale, if approved, shall be placed in escrow until the Termination Date or the Second Closing Date. For a period of two years after the Second Closing Date, an approval vote of the Board representing a minimum of 83% of the members voting in favor of any cash dividend and in favor of the exercise of the option to acquire the Bermuda Entity (as defined below) will be required. Following the Second Closing Date, a minimum of six directors must be on the Board for any vote to be taken. Shawn Dilkes shall serve as the President of Nukkleus Limited (Nukk Bermuda), the Buyers wholly owned subsidiary incorporated in Bermuda, which has acquired certain Forexware assets. Markos Kashiouris shall serve as the CEO and President of the Company. Following the Second Closing Date, Stathis Christophi shall serve as the Chief Financial Officer of Buyer and Ann Marie Caiato shall serve as Controller of Buyer. Further, within 12 months of the Second Closing Date, a Global Manager shall be engaged by the Buyer to manage the collective operations of Nukk Bermuda and the Company."
"6.14 Public Company Expenses. For a period of 18 months from the Second Closing Date, the Company shall only be required to contribute $50,000 per quarter to the Buyer to be used for public company expenses relating to the operation and maintenance of the Buyer. All other expenses during this time period will be paid by Nukk Bermuda."
"7.3 Stock Certificates; Options and Warrants. The Company will have delivered to the Buyer copies of certificates, duly endorsed evidencing all of the First Closing Shares on the First Closing Date (followed by receipt of such certificates on the Payment Date) and the Sellers will have delivered to the Buyer certificates, duly endorsed (or accompanied by duly executed stock transfer powers) evidencing all of the Second Closing Shares on the Second Closing Date. The Company will have delivered to the Buyer certificates, duly endorsed evidencing all of the Australia Shares on the First Closing Date. Any options or warrants to acquire any capital stock of any Acquired Company shall have been exercised or otherwise terminated."
8.8 Nukk Securities. The Buyer will have prepared and delivered to the Sellers an instruction letter directing the transfer agent to issue a stock certificate to the Company representing the Nukk First Closing Shares on the First Closing Date and separate certificates for each respective Seller evidencing all of the Nukk Second Closing Shares as set forth on Exhibit A to which that Seller is entitled on the Second Closing Date.
"10.4.4 Indemnified Partys Control. If the Indemnifying Party does not deliver the notice contemplated by clause (a) of Section 10.4.2 within 15 days after the Indemnified Party has given notice of the Third Party Claim, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party may defend, and may consent to the entry of any judgment or enter into any compromise or settlement with respect to, the Third Party Claim in any manner it may deem appropriate. If such notice is given on a timely basis and the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently, but any of the other conditions in Section 10.4.2 is or becomes unsatisfied, the Indemnified Party may defend, and may consent to the entry of any judgment or enter into any compromise or settlement with respect to, the Third Party Claim. In the event that the Indemnified Party conducts the defense of the Third Party Claim pursuant to this Section 10.4.4, the Indemnifying Party will (a) advance the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys and experts fees and expenses) and (b) remain responsible for any and all other Losses that the Indemnified Party may incur or suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim to the fullest extent provided in this Section 10."
"12.14 Representation by Counsel. Each party hereto acknowledges that it has been advised by legal and any other counsel retained by such party in its sole discretion. Each party acknowledges that such party has had a full opportunity to review this Agreement and all related exhibits and schedules and to negotiate any and all such documents in its sole discretion, without any undue influence by any other party hereto or any third party."
"(f) Termination of Rights as Stockholder. If any shareholder party to this Schedule no longer owns at least twenty percent (20%) of the shares of Buyer owned immediately after the Second Closing, then the provision of this Schedule shall no longer apply to such shareholder; provided, further, if the Currency Mountain Indemnitor (including any transferee of such shareholder who becomes a party to this Schedule) no longer owns at least twenty percent (20%) of the shares of Buyer owned immediately after the Second Closing, this Schedule shall no longer be in force and effect."
Section4\. Offering by the Initial Purchasers. The Initial Purchasers propose to make an offering of the Notes at the price and upon the terms set forth in the Pricing Disclosure Package and the Final Memorandum as soon as practicable after this Agreement is entered into and as in the judgment of the Initial Purchasers is advisable.
"Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and the Private Exchange Notes will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to the Enforceability Exceptions."
"(b) Each Initial Purchaser, severally and not jointly, agrees to indemnify and hold harmless the Company and the Subsidiary Guarantors, their respective directors, officers and each person, if any, who controls the Company within the meaning of Section15 of the Act or Section20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i)any untrue statement or alleged untrue statement of any material fact contained in the Pricing Disclosure Package or the Final Memorandum or any amendment or supplement thereto, or (ii)the omission or the alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Company by such Initial Purchaser through Deutsche Bank Securities Inc. specifically for use therein; and subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any legal or other expenses incurred by the Company and the Subsidiary Guarantors or any such director, officer or controlling person in connection with investigating or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action in respect thereof. The indemnity provided for in this Section9 will be in addition to any liability that the Initial Purchasers may otherwise have to the indemnified parties. The Initial Purchasers shall not be liable under this Section9 for any settlement of any claim or action effected without their consent, which shall not be unreasonably withheld, conditioned or delayed."
Section13\. Information Supplied by the Initial Purchasers. The statements set forth in the fifth paragraph and in the sixth paragraph under the heading Private Placement in the Preliminary Memorandum and the Final Memorandum (to the extent such statements relate to the Initial Purchasers) constitute the only information furnished by the Initial Purchasers to the Company for the purposes of Sections 2(a) and 9 hereof.
"Section15\. Successors. This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Company and their respective successors and legal representatives, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained; this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (i)the indemnities of the Company contained in Section9 of this Agreement"
"Guarantors with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Initial Purchaser has advised or is currently advising the Company and the Subsidiary Guarantors on other matters) or any other obligation to the Company and the Subsidiary Guarantors except the obligations expressly set forth in this Agreement and (iv)the Company and the Subsidiary Guarantors have consulted their own legal and financial advisors to the extent it deemed appropriate. The Company and the Subsidiary Guarantors agree that they will not claim that any Initial Purchaser has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company and the Subsidiary Guarantors, in connection with such transaction or the process leading thereto."
"C. Each Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) that aggregate principal amount of Notes set forth opposite such Buyers name in column (3) on the Schedule of Buyers attached hereto (which aggregate principal amount of Notes for all Buyers shall be up to $75,000,000) and (ii) related Series H Warrants, in substantially the form attached hereto as Exhibit B (the Warrants), representing the right to acquire that number of shares of Common Stock set forth opposite such Buyers name in column (4) on the Schedule of Buyers (as exercised, collectively, the Warrant Shares)."
"(d) Information.Such Buyer and its advisors, if any, have had access to the SEC Documents (as defined in Section 3(k) below) filed electronically on EDGAR and available at www.sec.gov and has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer.Such Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company.Neither such inquiries nor any other due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyers right to rely on the Companys representations and warranties contained herein.Such Buyer understands that its investment in the Securities involves a high degree of risk.Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities."
"(a) Organization and Qualification.The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authorization to own its properties and to carry on its business as now being conducted and as presently proposed to be conducted.The Company is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.As used in this Agreement, Material Adverse Effect means any material adverse effect on the business, properties, assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries, if any, individually or taken as a whole, or on the transactions contemplated hereby or on the other Transaction Documents (as defined below) or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of the Company to perform its obligations under the Transaction Documents.The Company has no Subsidiaries (which for purposes of this Agreement means any entity in which the Company, directly or indirectly, owns any of the capital stock or holds an equity or similar interest)."
"are issued and outstanding as of the date hereof and (iii) there are7,047,712 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable.Except as disclosed in (i) Schedule 3(u)(i), none of the Companys capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(u)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares or capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company; (iii) Schedule 3(u)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or by which the Company is or may become bound; (iv) Schedule 3(u)(iv),there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) Schedule 3(u)(v), there are no agreements or arrangements under which the Company is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(u)(vi), there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company; (vii) Schedule 3(u)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or phantom stock plans or agreements or any similar plan or agreement; and (ix) the Company has no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Companys business and which, individually or in the aggregate, do not or would not have a Material Adverse Effect.The Company has furnished or made available to the Buyers true, correct and complete copies of the Companys Certificate of Incorporation, as amended and as in effect on the date hereof (the Certificate of Incorporation), and the Companys Bylaws, as amended and as in effect on the date hereof (the Bylaws), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto."
"(ii) Manipulation of Price.The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) other than the Placement Agent, sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) other than the Placement Agent, paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company."
"release).Without the prior written consent of any applicable Buyer, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of such Buyer in any filing, announcement, release or otherwise. The Company understands and confirms that the Buyers will rely on the foregoing representations in effecting transactions in the securities of the Company."
"(k) Corporate Existence.So long as any Buyer beneficially owns any Securities, the Company shall (i) maintain its corporate existence and (ii) not be party to any Fundamental Transaction (as defined in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes and the Warrants."
"Section 4(p)) and (II) the earlier of (x) the time of the registration of all of the Underlying Shares pursuant to a registration statement, which registration remains in effect or (y) such time as all of the Underlying Shares, if a registration statement is not available for the resale of all of the Underlying Shares, may be sold without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1), the Company shall not, directly or indirectly, file any registration statement with the SEC, or file any amendment or supplement thereto, or grant any registration rights to any Person that can be exercised prior to the earlier of such time as set forth above, other than pursuant to any registration statement for the issuance of securities pursuant to an employee benefit plan or securities award, as registered on Form S-8."
"(a) Register. The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Notes and the Warrants in which the Company shall record the name and address of the Person in whose name the Notes and the Warrants have been issued (including the name and address of each transferee), the principal amount of Notes held by such Person, the number of Conversion Shares issuable pursuant to the terms of the Notes and the number of Warrant Shares issuable upon exercise of the Warrants held by such Person. The Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal representatives."
"(ii) Such Buyer shall have delivered for the Notes and the related Warrants being purchased by such Buyer at the Closing: (1) such Buyers Company Purchase Price to the Company (less, in the case of Hudson Bay, the amounts withheld pursuant to Section 4(g)), by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company and (2) such Buyers Restricted Account Purchase Price to such Buyers Master Restricted Account by wire transfer of immediately available funds pursuant to the wire instructions set forth in such Buyers Master Control Account Agreement, such portion of such Buyers Purchase Price to be held and released by the Bank in accordance with and pursuant to the terms and conditions of such Buyers Master Control Account Agreement."
"(f) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered:(i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or by electronic mail; or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses for such communications shall be:"
"(o) Payment Set Aside. To the extent that the Company makes a payment or payments to the Buyers hereunder or pursuant to any of the other Transaction Documents or the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred."
"(i) Conversion Amount means the sum of (A) the portion of the Principal to be converted, amortized, redeemed or otherwise with respect to which this determination is being made, (B) accrued and unpaid Interest, if any, with respect to such Principal and (C) accrued and unpaid Late Charges, if any, with respect to such Principal and Interest."
"(ii) other than with respect to any Authorized Share Failure (as defined in Section 11(b)), the Companys (A) failure to cure a Conversion Failure or an Exercise Failure (as defined in the Warrants) by delivery of the required number of shares of Common Stock within five (5) Trading Days after the applicable Conversion Date or the date a holder of Warrants delivers an Exercise Notice (as defined in the Warrants) and the applicable Aggregate Exercise Price (as defined in the Warrants), if any, to the Company or (B) notice, written or oral, to the Holder or any holder of the Other Notes or the Warrants, including by way of public announcement or through any of its agents, at any time, of its intention not to comply with a request for conversion of this Note or any Other Notes into, or exercise of the Warrants for, shares of Common Stock that is tendered in accordance with the provisions of this Note, the Other Notes or the Warrants, as applicable, other than pursuant to Section 3(d) (and analogous provisions under the Other Notes and the Warrants);"
"(iv) the Companys failure to pay to the Holder any amount of Principal, Interest, Late Charges, Redemption Price or other amounts when and as due under this Note or any other Transaction Document or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby to which the Holder is a party, except for (x) amounts required to be paid to the Holder from the Holder Master Restricted Account and (y) in the case of a failure to pay Interest and/or Late Charges when and as due, in which case only if such failure continues for a period of at least an aggregate of two (2) Business Days;"
"(xvi) any material damage to, or loss, theft or destruction of, any Collateral, Master Control Account Collateral or a material amount of property of the Company, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Company or any Subsidiary, if any such event or circumstance could reasonably be expected to have a Material Adverse Effect;"
"product of (A) the Conversion Amount being redeemed and (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding the earlier to occur of (x) the consummation of the Change of Control and (y) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice, by (II) the lowest Conversion Price in effect during such period (the Change of Control Redemption Price).Redemptions required by this Section 5 shall be made in accordance with the provisions of Section 12 and shall have priority to payments to stockholders in connection with a Change of Control.To the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments.Notwithstanding anything to the contrary in this Section5, but subject to Section 3(d), until the Change of Control Redemption Price (together with any interest thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 5(b) (together with any interest thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3.In the event of a partial redemption of this Note pursuant hereto, the Principal amount redeemed shall be deducted in reverse order starting from the final Installment Amount to be paid hereunder on the final Installment Date, unless the Holder otherwise indicates and allocates among any Installment Dates hereunder in the applicable Change of Control Redemption Notice.The parties hereto agree that in the event of the Companys redemption of any portion of the Note under this Section 5(b), the Holders damages would be uncertain and difficult to estimate because of the parties inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder.Accordingly, any Change of Control redemption premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holders actual loss of its investment opportunity and not as a penalty."
"(c) Other Corporate Events.In addition to and not in substitution for any other rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities, cash, assets or other property with respect to or in exchange for shares of Common Stock (a Corporate Event), the Company shall make appropriate provision to ensure that, and any applicable Successor Entity or Successor Entities shall ensure that, and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the right to receive upon conversion of this Note at any time after the occurrence or consummation of the Corporate Event, shares of Common Stock or Successor Capital Stock or, if so elected by the Holder, in lieu of the shares of Common Stock (or other securities, cash, assets or other property) purchasable upon the conversion of this Note prior to such Corporate Event (but not in lieu of such items still issuable under Sections 6(a) and 6(b), which shall continue to be receivable on the Common Stock or on such shares of stock, securities, cash, assets or any other property otherwise receivable with respect to or in exchange for shares of Common Stock prior to the date of consummation of such Corporate Event), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights and any shares of Common Stock) which the Holder would have been entitled to receive upon the occurrence or consummation of such Corporate Event or the record, eligibility or other determination date for the event resulting in such Corporate Event, had"
"(b) Adjustment of Conversion Price upon Subdivision or Combination of Common Stock.If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced.If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately increased.Any adjustment under this Section7(b) shall become effective at the close of business on the date the subdivision or combination becomes effective."
"(a) General.On each applicable Installment Date, provided there has been no Equity Conditions Failure, the Company shall pay to the Holder of this Note the Installment Amount due on such date by converting all or some of such Installment Amount into Common Stock, in accordance with this Section 8 (a Company Conversion); provided, however, that the Company may, at its option following notice to the Holder as set forth below, pay the Installment Amount by redeeming such Installment Amount in cash (a Company Redemption) or by any combination of a Company Conversion and a Company Redemption so long as all of the outstanding applicable Installment Amount due on any Installment Date shall be converted and/or redeemed by the Company on the applicable Installment Date, subject to the provisions of this Section 8.On or prior to the date which is the twenty-first (21st) Trading Day prior to each Installment Date (each, an Installment Notice Due Date), the Company shall deliver written notice (each, a Company Installment Notice and the date the Holder all of the holders of the Other Notes receive such notice is referred to as the Company Installment Notice Date), to the Holder and each holder of the Other Notes which Company Installment Notice shall (i) either (A) confirm that the applicable Installment Amount of the Holders Note shall be converted to Common Stock in whole or in part pursuant to a Company Conversion (such amount to be converted, the Company Conversion Amount) or (B) (1) state that the Company elects to redeem for cash, or is required to redeem for cash in accordance with the provisions of the Notes, in whole or in part, the applicable Installment Amount pursuant to a Company Redemption and (2) specify the portion (including Interest and Late Charges, if any, on such amount and Interest) which the Company elects or is required to redeem pursuant to a Company Redemption (such amount to be redeemed, the Company Redemption Amount) and the portion (including Interest and Late Charges, if any, on such amount and Interest, if any) that is the Company Conversion Amount, which amounts, when added together, must at least equal the applicable Installment Amount and (ii) if the Installment Amount is to be paid, in whole or in part, in Common Stock pursuant to a Company Conversion, certify that the Equity Conditions have been satisfied as of the Company Installment Notice Date. Each Company Installment Notice shall be irrevocable.If the Company does not timely deliver a Company Installment Notice in accordance with this Section 8, then the Company shall be deemed to have delivered an irrevocable Company Installment Notice confirming a Company Conversion and shall be deemed to have certified that the Equity Conditions in connection with any such conversion on the Company Installment Notice Date and Installment Date have been satisfied."
"Optional Redemption Price is paid, in full, the Company Optional Redemption Amount may be converted, in whole or in part, by the Holder into shares of Common Stock pursuant to Section 3.All Conversion Amounts converted by the Holder after the Company Optional Redemption Notice Date shall reduce the Company Optional Redemption Amount of this Note required to be redeemed on the Company Optional Redemption Date, unless the Holder otherwise indicates in the applicable Conversion Notice.Company Optional Redemptions made pursuant to this Section 9 shall be made in accordance with Section 12.To the extent redemptions required by this Section 9 are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments.The parties hereto agree that in the event of the Companys redemption of any portion of the Note under this Section 9, the Holders damages would be uncertain and difficult to estimate because of the parties inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder.If the Company elects to cause a Company Optional Redemption pursuant to this Section9, then it must simultaneously take the same action in the same proportion with respect to the Other Notes."
"(i) General.The Company shall establish and maintain a bank account for each holder of Notes (collectively, including the Holder Master Restricted Account, the Master Restricted Accounts) at UBS Financial Services Inc. (the Control Account Bank), which Master Restricted Account applicable to a holder of Notes shall be subject to an account control agreement in the form set forth in Exhibit E to the Securities Purchase Agreement (each, a Master Control Account Agreement).On the Issuance Date, the Company shall have directed the Purchasers to deposit an aggregate of $62,000,000 of the aggregate Cash Purchase Prices (as defined in the Securities Purchase Agreement) for all holders of Notes into Master Restricted Accounts.No conversions or redemptions hereunder shall reduce any Restricted Principal until subsequent conversions and redemptions hereunder equal to the Threshold Principal Amount."
"Account Agreement or otherwise fails to promptly comply with the instructions of the Holder in connection with the Master Control Account Collateral, the Holder may, at its option, withdraw the Master Control Account Collateral from the Control Account Bank and hold such Master Control Account Collateral until such time as (x) the Company and the Holder have agreed upon a replacement of the Control Account Bank and (y) an account control agreement similar in form and substance to the Master Control Account Agreement that is acceptable to the Holder shall have been duly executed by the Company, the Holder and the replacement of the Control Account Bank and a new account shall have been opened.Notwithstanding anything herein to the contrary, if the Company or any of its Subsidiaries receives any of the Master Control Account Collateral in breach of any Master Control Account Agreement (or receives notice from any holder of Notes that an amount was wired to the Company from a Master Restricted Account attributable to such holder of Notes without the proper authorization of such holder of Notes), the Company shall promptly cause such amounts to be returned to such applicable Master Restricted Account."
"(iii) with respect to the Holder Pro Rata Amount of an initial dollar amount equal to $6,000,000 less any Control Account Release Amount released to the Company since the Closing Date or such lesser amount that then remains available in the Holders Master Restricted Account, the fifth (5th) Trading Day after the first Installment Date hereunder;"
"(i) with respect to the entire remaining Restricted Principal as of the applicable date of determination, the date of an Equity Conditions Failure; provided, however, that if the number of days between the applicable date of determination and the Issuance Date is less than the number of days necessary in order to determine if an Equity Conditions Failure has occurred, such number of days shall be shortened to the number of days between the applicable date of determination and the Issuance Date;"
"(iv) with respect to the entire remaining Restricted Principal as of the applicable date of determination, any date on which the Company shall have a number of shares of Common Stock duly authorized and reserved for the issuance of shares of Common Stock pursuant to the terms of this Note that is less than, the quotient obtained by dividing (A) 150% of the difference obtained by subtracting (1) the Restricted Principal that is then held in the Master Restricted Account of the Holder, from (2) the Principal amount of this Note that is then outstanding, by (B) the Conversion Floor Price."
"(gg) Equity Conditions means each of the following conditions:(i) all shares of Common Stock issuable pursuant to the terms of the Notes, including the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the applicable Company Conversion or Control Account Release, as applicable, requiring the satisfaction of the Equity Conditions (in each case, without regard to any restriction or limitation on conversions and determined utilizing the Equity Conditions Conversion Price), shall be eligible for sale pursuant to Rule 144 without any volume limitation by the Holder and no Public Information Failure exists, and without the need for registration under any applicable federal or state securities laws; (ii) on each day during the Equity Conditions Measuring Period, the Common Stock is designated for quotation on the Principal Market or any other Eligible Market and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than five (5) days and occurring prior to the applicable date of determination due to business announcements by the Company); (iii) during the Equity Conditions Measuring Period, the Company shall have delivered all shares of Common Stock pursuant to the terms of this Note and the Other Notes and upon exercise of the Warrants to the holders on a timely basis as set forth in Section 3(c) hereof (and analogous provisions under the Other Notes) and Section 1(a) of the Warrants; (iv) the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the applicable Company Conversion requiring the satisfaction of the Equity Conditions may be issued in full without violating Section 3(d) hereof (and analogous provisions under the Other Notes) (after giving effect to any action pursuant to Section 8(f)) and the rules or regulations of the Principal Market or any other applicable Eligible Market; (v) during the Equity Conditions Measuring Period, the Company shall not have failed to timely make any payments within five (5) Business Days of when such payment is due pursuant to any Transaction Document; (vi) during the Equity Conditions Measuring Period, there shall not have occurred either (A) the public announcement of a pending, proposed or intended Fundamental Transaction which has not been abandoned, terminated or consummated, (B) an Event of Default or (C) an event that with the passage of time or giving of notice would constitute an Event of Default; (vii) the Company shall have no knowledge of any fact that would cause all shares of Common Stock issuable pursuant to the terms of the Notes, including the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the applicable Company Conversion or Control Account Release, as applicable (in each case, without regard to any restriction or limitation on conversions and determined utilizing the Equity Conditions Conversion Price), requiring the"
"Stock, (B) thatthe Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the beneficial owner (as defined in Rule13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the Subscription Date calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender their shares of Common Stock without approval of the stockholders of the Company or (C) directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction."
"(uu) Installment Amount means with respect to each Installment Date, an amount equal to the sum of the (i) lesser of (A) $[]2 and (B) the Principal outstanding on such Installment Date, (ii) any Deferral Amount deferred pursuant to Section 8(d) and included in such Installment Amount, (iii) any Accelerated Amount accelerated pursuant to Section 8(e) and included in such Installment Amount and (iv) accrued and unpaid Interest with respect to such Principal (including, without limitation, any applicable Deferral Amount(s) and/or Accelerated Amount(s)) and accrued and unpaid Late Charges, if any, with respect to such Principal and Interest, as any such Installment Amount for each Holder may be reduced pursuant to the terms hereof, whether upon conversion, redemption or otherwise. In the event the Holder shall sell or otherwise transfer or assign any portion of this Note, the transferee shall be allocated a pro rata portion of each unpaid Installment Amount hereunder."
"(fff) Permitted Liens means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due or"
"(dddd) Successor Entity means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with which such Fundamental Transaction shall have been entered into."
" Notwithstanding anything to the contrary contained herein, this Conversion Notice shall constitute a representation by the Holder of the Note submitting this Conversion Notice thatafter giving effect to the conversion provided for in this Conversion Notice, such Holder (together with its Affiliates) will not have beneficial ownership (together with the beneficial ownership of such Persons Affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding shares of Common Stock of the Company as determined based on the Reported Outstanding Share Number and otherwise pursuant to the provisions of Section3(d)(i) of the Note."
"registration statement in favor of the Holder or, if exercised via Cashless Exercise, can be immediately sold or transferred by the Holder pursuant to Rule 144, credit such aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holders or its designees balance account with DTC through its Deposit / Withdrawal At Custodian system, or (Y) otherwise, issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Companys share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise, such certificate to contain such legends as may be required by Section 2(g) of the Securities Purchase Agreement.The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the issuance of Warrant Shares via DTC, if any.Upon delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holders DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be.If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than three (3) Trading Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised.No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but rather the number of Warrant Shares to be issued shall be rounded up to the nearest whole number.The Company shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant.The Companys obligations to issue and deliver Warrant Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination.NOTWITHSTANDING ANY PROVISION OF THIS WARRANT TO THE CONTRARY, NO MORE THAN THE MAXIMUM ELIGIBILITY NUMBER OF WARRANT SHARES SHALL BE EXERCISABLE HEREUNDER."
"not affect the Companys obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise.In addition to the foregoing, if on or prior to the Share Delivery Date as required pursuant to the terms of Section 1(a), the Company shall fail to issue and deliver a certificate to the Holder and register such shares of Common Stock on the Companys share register or credit the Holders balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holders exercise hereunder or pursuant to the Companys obligation pursuant to clause (ii) below, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of Common Stock issuable upon such exercise that the Holder anticipated receiving from the Company (a Buy-In), then the Company shall, within three (3) Trading Days after the Holders request and in the Holders discretion, either (i) pay cash to the Holder in an amount equal to the Holders total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the Buy-In Price), at which point the Companys obligation to deliver such certificate (and to issue such shares of Common Stock) or credit such Holders balance account with DTC for such shares of Common Stock shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such shares of Common Stock or credit such Holders balance account with DTC for such shares of Common Stock, as applicable, and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Buy-In Price (including brokerage commissions and other out-of-pocket expenses, if any). Nothing shall limit the Holders right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Companys failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the exercise of this Warrant as required pursuant to the terms hereof."
"Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holders beneficial ownership, as determined pursuant to this Section 1(f), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the Reduction Shares) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares.For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding.In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported.In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holders and the other Attribution Parties aggregate beneficial ownership exceeds the Maximum Percentage (the Excess Shares) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares.As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares.Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of SPA Warrants that is not an Attribution Party of the Holder.For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act.The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(f) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f) or to make changes or supplements necessary or desirable to properly give effect to such limitation.The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant."
"(a) Adjustment Upon Issuance of Shares of Common Stock.If and whenever on or after the Subscription Date, the Company issues or sells, or in accordance with this Section 2 is deemed to have issued or sold, or the Company publicly announces the issuance or sale of, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued or sold, or in accordance with this Section 2(a) is deemed to have been issued or sold, by the Company (x) in connection with any Excluded Securities, (y) for which the Holder received a Distribution in at least an equivalent amount pursuant to Section 3 and (z) adjusting the Exercise Price pursuant to Section2(d)), for a consideration per share (the New Issuance Price) less than a price (the Applicable Price) equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (the foregoing a Dilutive Issuance), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For purposes of determining the adjusted Exercise Price under this Section 2(a), the following shall be applicable:"
"and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share.For the purposes of this Section 2(a)(ii), the lowest price per share for which one share of Common Stock is issuable upon the conversion, exercise or exchange thereof shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the issuance or sale of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security less any consideration paid or payable by the Company with respect to such one share of Common Stock upon the issuance or sale of such Convertible Security and upon conversion, exercise or exchange of such Convertible Security.No further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Exercise Price has been or is to be made pursuant to other provisions of this Section 2(a), no further adjustment of the Exercise Price shall be made by reason of such issue or sale."
"(d) Adjustment Upon Subdivision or Combination of Shares of Common Stock.If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately increased.If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased.Any adjustment under this Section2(d) shall become effective at the close of business on the date the subdivision or combination becomes effective."
"Pledged Shares means (a) the shares of capital stock or other equity interests described in Schedule VIII hereto, whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, issued by the Persons described in such Schedule VIII (the Existing Issuers), (b) the shares of capital stock or other equity interests at any time and from time to time acquired by a Grantor of any and all Persons now or hereafter existing (such Persons, together with the Existing Issuers, being hereinafter referred to collectively as the Pledged Issuers and each individually as a Pledged Issuer), whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, and (c) the certificates representing such shares of capital stock, all options and other rights, contractual or otherwise, in respect thereof and all dividends, distributions, cash, Instruments, Investment Property, financial assets, securities, capital stock, other equity interests, stock options and commodity contracts, notes, debentures, bonds, promissory notes or other evidences of indebtedness and all other property (including, without limitation, any stock dividend and any distribution in connection with a stock split) from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such capital stock."
"(b) There is no pending or written notice threatening any action, suit, proceeding or claim affecting such Grantor before any governmental authority or any arbitrator, or any order, judgment or award by any governmental authority or arbitrator, that may adversely affect the grant by such Grantor, or the perfection, of the security interest purported to be created hereby in the Collateral, or the exercise by the Collateral Agent of any of its rights or remedies hereunder."
"(c) All Federal, state and local tax returns and other reports required by applicable law to be filed by such Grantor have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon such Grantor or any property of such Grantor (including, without limitation, all federal income and social security taxes on employees wages) and which have become due and payable on or prior to the date hereof have been paid, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non- payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with United States generally accepted accounting principles consistently applied (GAAP)."
"(b) Location of Equipment and Inventory.Each Grantor will keep the Equipment and Inventory (other than Equipment and Inventory at customer locations) at the locations specified therefor in Section4(d) hereof or, upon not less than thirty (30) days prior written notice to the Collateral Agent accompanied by a new Schedule V hereto indicating each new location of the Equipment and Inventory, at such other locations in the United States."
"(ii) Each Grantor will, except as otherwise provided in this subsection(f), continue to collect, at its own expense, all amounts due or to become due under the Accounts. In connection with such collections, such Grantor may (and, at the Collateral Agents direction, will) take such action as such Grantor or the Collateral Agent may deem necessary or advisable to enforce collection or performance of the Accounts; provided, however, that the Collateral Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the account debtors or obligors under any Accounts of the assignment of such Accounts to the Collateral Agent and to direct such account debtors or obligors to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent or its designated agent and, upon such notification and at the expense of such Grantor and to the extent permitted by law, to enforce collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done.After receipt by a Grantor of a notice from the Collateral Agent that the Collateral Agent has notified, intends to notify, or has enforced or intends to enforce a Grantors rights against the account debtors or obligors under any Accounts as referred to in the proviso to the immediately preceding sentence, (A)all amounts and proceeds (including Instruments) received by such Grantor in respect of the Accounts shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash collateral and applied as specified in Section 7(b) hereof, and (B) such Grantor will not adjust, settle or compromise the amount or payment of any Account or release wholly or partly any account debtor or obligor thereof or allow any credit or discount thereon.In addition, upon the occurrence and during the continuance of an Event of Default, the Collateral Agent may (in its sole and absolute discretion) direct any or all of the banks and financial institutions with which such Grantor either maintains a Deposit Account or a lockbox or deposits the proceeds of any Accounts to send immediately to the Collateral Agent by wire transfer (to such account as the Collateral Agent shall specify, or in such other manner as the Collateral Agent shall direct) all or a portion of such securities, cash, investments and other items held by such institution.Any such"
"the value of any Commodity Contracts, securities, Investment Property and other items held by it.Without the prior written consent of the Collateral Agent, such Grantor shall not make or maintain any Deposit Account, Commodity Account or Securities Account except for the accounts set forth in Schedule IV hereto.The provisions of this paragraph 5(i) shall not apply to (i) Deposit Accounts for which the Collateral Agent is the depositary and (ii) Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of a Grantors salaried employees."
"(ii) Each Grantor hereby appoints the Collateral Agent as its attorney-in- fact, effective the date hereof and terminating upon the termination of this Agreement, for the purpose of (A) executing on behalf of such Grantor title or ownership applications for filing with appropriate state agencies to enable motor vehicles now owned or hereafter acquired by such Grantor to be retitled and the Collateral Agent listed as lienholder thereof, (B) filing such applications with such state agencies, and (C) executing such other documents and instruments on behalf of, and taking such other action in the name of, such Grantor as the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof (including, without limitation, for the purpose of creating in favor of the Collateral Agent a perfected Lien on the motor vehicles and exercising the rights and remedies of the Collateral Agent hereunder). This appointment as attorney-in-fact is coupled with an interest and is irrevocable until the complete conversion of all of the Companys obligations under the Notes to equity securities of the Company and/or indefeasible payment in full in cash of all obligations under the Notes (together with any matured indemnification obligations as of the date of such conversion and/or payment, but excluding any inchoate or unmatured contingent indemnification obligations)."
"(l) Inspection and Reporting.Each Grantor shall permit the Collateral Agent, or any agent or representatives thereof or such professionals or other Persons as the Collateral Agent may designate, not more than once a year in the absence of an Event of Default, (i)to examine and make copies of and abstracts from such Grantors records and books of account, (ii) to visit and inspect its properties, (iii)to verify materials, leases, Instruments, Accounts, Inventory and other assets of such Grantor from time to time, (iii)to conduct audits, physical counts, appraisals and/or valuations, examinations at the locations of such Grantor.Each Grantor shall also permit the Collateral Agent, or any agent or representatives thereof or such professionals or other Persons as the Collateral Agent may designate to discuss such Grantors affairs, finances and accounts with any of its officers subject to the execution by the Collateral Agent or its designee(s) of a mutually agreeable confidentiality agreement."
"at any of the Collateral Agents offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable and/or (B)lease, license or dispose of the Collateral or any part thereof upon such terms as the Collateral Agent may deem commercially reasonable.Each Grantor agrees that, to the extent notice of sale or any other disposition of its respective Collateral shall be required by law, at least ten (10) days notice to such Grantor of the time and place of any public sale or the time after which any private sale or other disposition of its respective Collateral is to be made shall constitute reasonable notification.The Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral regardless of notice of sale having been given.The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.Each Grantor hereby waives any claims against the Collateral Agent and the Holders arising by reason of the fact that the price at which its respective Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree, and waives all rights that such Grantor may have to require that all or any part of such Collateral be marshalled upon any sale (public or private) thereof.Each Grantor hereby acknowledges that (i)any such sale of its respective Collateral by the Collateral Agent shall be made without warranty, (ii)the Collateral Agent may specifically disclaim any warranties of title, possession, quiet enjoyment or the like, and (iii)such actions set forth in clauses(i) and (ii) above shall not adversely affect the commercial reasonableness of any such sale of Collateral.In addition to the foregoing, (1)upon written notice to any Grantor from the Collateral Agent, such Grantor shall cease any use of the Intellectual Property or any trademark, patent or copyright similar thereto for any purpose described in such notice; (2) the Collateral Agent may, at any time and from time to time, upon 10 days prior notice to such Grantor, license, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any of the Intellectual Property, throughout the universe for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine to the extent consistent with any restrictions or conditions imposed upon such Grantor with respect to such Intellectual Property by license or other contractual arrangement; and (2) the Collateral Agent may, at any time, pursuant to the authority granted in Section 6 hereof (such authority being effective upon the occurrence and during the continuance of an Event of Default), execute and deliver on behalf of such Grantor, one or more instruments of assignment of the Intellectual Property (or any application or registration thereof), in form suitable for filing, recording or registration in any country."
"(b) Each Grantor agrees, jointly and severally, to, upon demand, pay to the Collateral Agent the amount of any and all costs and expenses, including the reasonable fees, costs, expenses and disbursements of counsel for the Collateral Agent and of any experts and agents (including, without limitation, any collateral trustee which may act as agent of the Collateral Agent), which the Collateral Agent may incur in connection with (i)the preparation,"
"negotiation, execution, delivery, recordation, administration, amendment, waiver or other modification or termination of this Agreement, (ii)the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any Collateral, (iii)the exercise or enforcement of any of the rights of the Collateral Agent hereunder, or (iv)the failure by any Grantor to perform or observe any of the provisions hereof."
"WHEREAS,  (the Assignor) [has adopted, used and is using, and holds all right, title and interest in and to, the trademarks and service marks listed on the annexed Schedule1A, which trademarks and service marks are registered or applied for in the United States Patent and Trademark Office (the Trademarks)] [holds all right, title and interest in the letter patents, design patents and utility patents listed on the annexed Schedule1A, which patents are issued or applied for in the United States Patent and Trademark Office (the Patents)] [holds all right, title and interest in the copyrights listed on the annexed Schedule1A, which copyrights are registered in the United States Copyright Office (the Copyrights)];"
"Section 7.Indemnification of UBSFS. Client hereby agrees to indemnify and hold harmless UBSFS, its affiliates and their respective directors, officers, agents and employees, on a current basis as incurred, against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including without limitation, any and all court costs and reasonable attorneys fees, in any way related to or arising out of or in connection with this Agreement or any action taken or not taken pursuant hereto, except to the extent caused by UBSFS breach of its obligations hereunder. Creditor hereby agrees to indemnify and hold harmless UBSFS, its affiliates and their respective directors, officers, agents and employees, on a current basis as incurred, against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including, without limitation any and all court costs and reasonable attorneys fees, in any way related to or arising out of or in connection with any Instruction originated by Creditor or any action taken or not taken in connection thereto, except to the extent caused by UBSFS breach of its obligations hereunder or its gross negligence or willful misconduct."
"The undersigned holder hereby exercises the right to purchase of the shares of Common Stock (Warrant Shares) of Great Basin Scientific, Inc., a Delaware corporation (the Company), evidenced by the attached Warrant to Purchase Common Stock (the Warrant).Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant."
"| | ---|---|--- |  | aCashExercisewithrespectto  WarrantShares;and/or | |  | a Cashless Exercise with respect to  Warrant Shares. 2.Payment of Exercise Price.In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum of $ to the Company in accordance with the terms of the Warrant. "
"17\. Under the laws of the State of New York, the choice of New York law to govern the Notes and the other Transaction Documents is a valid choice of law. Our opinion in this Paragraph 17 is limited solely to the choice of New York law as it relates to the Transaction Documents and we do not opine as to any courts recognition or determination of choice of law of any state related to the perfection, non-perfection or priority of any security interest, pledge, lien or other similar interest in any personal property or the creation, perfection or priority of any lien, mortgage or other similar interest in any real property."
"3. | Attached hereto as Exhibit C is a true, correct and complete copy of the Bylaws of the Company and any and all amendments thereto, and no action has been taken to further amend, modify or repeal such Bylaws, the same being in full force and effect in the attached form as of the date hereof. ---|--- "
"The Company also entered into a second Financial Advisory Agency Agreement with Rona Capital effective in June 2014, wherein Rona Capital provided the Company with financial advisory services related to the Companys ongoing financing activities. The Company paid Rona Capital $15,000 per month and additional cash amounts on the achievement of specified milestones, including $50,000 upon the filing of an S-1 with the SEC and $100,000 upon the closing of an initial public offering."
"Our Class A Warrants, Class B Warrants and 36,000 common warrants granted as part of the SeriesD Preferred offering, have an exercise price adjustment provision that in the event the Company sells any additional shares of stock or securities exercisable or convertible into shares, subject to certain exceptions, at a price per share less than the original or current in effect exercise price per share of the respective warrant, the exercise price per share shall be adjusted to a price equal to the price paid per share for such additional stock or exercise or conversion price for such additional stock.Under the terms of the ClassA and ClassB Warrants, a convertible instrument (including a right to purchase equity of the Company) issued, subject to an original issue or similar discount or which principal amount is directly or indirectly increased after issuance will be deemed to have been issued for the actual cash amount received by the Company in consideration of such convertible instruments."
"$6,728 capital lease obligation with Roche Diagnostic Corp  Light Cycler #5. The Company entered into a lease agreement on December26, 2013 for one light cycler machine. The monthly lease payments are $1,470 over a period of 36 months. The lease expires on December26, 2016 and has a purchase buy-out option of $1. The lease is secured by the equipment leased."
"1.2 Reservation of Shares. The Company has authorized and has reserved and covenants to continue to reserve, free of preemptive rights and other similar contractual rights of stockholders, a number of shares of Common Stock equal to one hundred percent (100%) of the number of shares of Common Stock as shall from time to time be sufficient to effect conversion of the Note. Any shares of Common Stock issuable upon conversion of the Note are herein referred to as the ""Shares""."
"(l) Actions Pending. Except as disclosed in the Commission Documents or on Schedule 2.1(l), there is no action, suit, claim, investigation, arbitration, alternate dispute resolution proceeding or any other proceeding pending or, to the knowledge of the Company, threatened against or involving the Company,: (i) which questions the validity of this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby or any action taken or to be taken pursuant hereto or thereto; or (ii) involving any of their respective properties or assets. To the knowledge of the Company, there are no outstanding orders, judgments, injunctions, awards or decrees of any court, arbitrator or governmental or regulatory body against the Company or any subsidiary or any of their respective executive officers or directors in their capacities as such."
"(n) Compliance. Except as set forth in the in Schedule 2.1(n), the Company: (i) is not in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company), nor has the Company received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect."
"(q) Taxes. Other than as set forth on Schedule 2.1(q), the Company, to the extent its applicable, has accurately prepared and filed all federal, state and other tax returns required by law to be filed by it, has paid or made provisions for the payment of all taxes shown to be due other than payment being contested and all additional assessments, and adequate provisions have been and are reflected in the consolidated financial statements of the Company for all current taxes and other charges to which the Company, is subject and which are not currently due and payable. None of the federal income tax returns of the Company have been audited by the Internal Revenue Service. The Company has no knowledge of any additional assessments, adjustments or contingent tax liability (whether federal, state or foreign) of any nature whatsoever, whether pending or threatened against the Company for any period, nor of any basis for any such assessment, adjustment or contingency."
"(g) Review of Commission Documents. The Purchaser represents that such Purchaser has reviewed the Commission Documents and has been given full and complete access to the Company for the purpose of obtaining such information as such Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Note. The Purchaser represents that such Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Note as Purchaser or Purchaser's qualified representative have found necessary to make an informed investment decision to purchase the Note hereunder. The Purchaser acknowledges that it has access to the Company's publicly available reports and registration statements filed with the Commission prior to the Closing via the internet at www.sec.gov. The Purchaser is satisfied that it has received adequate information with respect to all matters which it or its advisors, if any, consider material to its decision to make this investment."
"(m) Brokers. The Purchaser does not have any knowledge of any brokerage or finder's fees or commissions that are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person or entity with respect to the transactions contemplated by this Agreement and the Transaction Documents."
"In addition, in connection with the Rights Notice, the Purchaser's right to invest the additional $2,500,000, as set forth in Section 1.1, shall be accelerated and terminated by the end of the Option Period. The Purchaser shall promptly, but no later than five (5) business days of receipt of the Rights Notice, inform the Company whether such Purchaser will exercise this right. If the Purchaser chooses to exercise this right, the Purchaser shall deliver the purchase price to the Company within five (5) business days after it informs the Company of its intention to exercise the right. If the Purchaser does not deliver the purchase price within the required time period should it chooses to exercise this right, the Purchaser shall pay a break-up fee to the Company as set forth in Section 1.6."
"Section 3.20 Corporate Existence. So long any of the Note remains outstanding, the Company shall maintain its corporate existence and shall not be party to any Fundamental Transaction (as hereinafter defined) without the Holder's prior written consent. ""Fundamental Transaction"" means that (A) the Company shall, directly or indirectly, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Person or Persons, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company to another Person, or (iii) allow another Person to make a purchase, tender or exchange offer that is accepted by the holders of more than the 50% of the outstanding shares of voting stock (not including any shares of voting stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (iv) consummate a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the outstanding shares of voting stock (not including any shares of voting stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock purchase agreement or other business combination), (v) reorganize, recapitalize or reclassify its Common Stock or (B) any ""person"" or ""group"" (as these terms are used for purposes of Sections 14(d) and 15(d) of the Exchange Act) is or shall become the ""beneficial owner"" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock."
"Section 7.7 Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Purchaser, as applicable, provided, however, that, subject to federal and state securities laws and as otherwise provided in the Transaction Documents, the Purchaser may assign its rights and delegate its duties hereunder in whole or in part: (i) to a third party acquiring all or substantially all of its Shares in a private transaction; or (ii) to an affiliate, in each case, without the prior written consent of the Company, after notice duly given by such Purchaser to the Company provided, that no such assignment or obligation shall affect the obligations of such Purchaser hereunder and that such assignee agrees in writing to be bound, with respect to the transferred securities, by the provisions hereof that apply to the Purchaser. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. If any Purchaser transfers the Shares purchased hereunder, any such penalty shares or liquidated damages, as the case may be, pursuant to this Agreement shall similarly transfer to such transferee with no further action required by the purchaser or the Company."
"(c) In the event of a termination pursuant to Section 7.17(a) or 7.17(b), the Purchaser shall have the right to a return of up to its entire Minimum Purchase Price pursuant to this Agreement, without interest or deduction. The Company covenants and agrees to cooperate with such Purchaser in obtaining the return of its Minimum Purchase Price."
"A. Authority of Board. The Plan shall be administered by the Board or, in the Board's sole discretion, by the Committee. Subject to the terms of the Plan, the Committee's charter and Applicable Laws, and in addition to other express powers and authorization conferred by the Plan, the Committee shall have the authority: (1) to construe and interpret the Plan and apply its provisions; (2)to promulgate, amend, and rescind rules and regulations relating to the administration of the Plan; (3) to authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan; (4) to delegate its authority to one or more officers of the Company; (5) to determine when Awards are to be granted under the Plan and the applicable Grant Date; (6) from time to time to select, subject to the limitations set forth in this Plan, those Participants to whom Awards shall be granted; (7) to determine the number of shares of Common Stock to be made subject to each Award; (8) to determine whether each Option is to be an Incentive Stock Option or a Non-qualified Stock Option; (9) to prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and vesting provisions, and to specify the provisions of the Award Agreement relating to such grant; (10) to amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding Award; provided, however, that if any such amendment impairs a Participant's rights or increases a Participant's obligations under his or her Award or creates or increases a Participant's federal income tax liability with respect to an Award, such amendment shall also be subject to the Participant's consent; (11) to determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees under the Company's employment policies; (12) to make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event that triggers anti-dilution adjustments; (13) to interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument or agreement relating to, or Award granted under, the Plan; and (14) to exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration of the Plan."
"B. Shareholder Rights. Except as provided in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to an Award unless and until such Participant has satisfied all requirements for exercise or settlement of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions of other rights for which the record date is prior to the date such Common Stock certificate is issued, except as provided in Section XI hereof."
"F. No Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Board shall determine whether cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or whether any fractional shares should be rounded, forfeited or otherwise eliminated."
"I. Disqualifying Dispositions. Any Participant who shall make a ""disposition"" (as defined in Section 424 of the Code) of all or any portion of shares of Common Stock acquired upon exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock Option or within one year after the issuance of the shares of Common Stock acquired upon exercise of such Incentive Stock Option (a ""Disqualifying Disposition"") shall be required to immediately advise the Company in writing as to the occurrence of the sale and the price realized upon the sale of such shares of Common Stock."
"(a) Purchase of Shares. Subject to the terms and conditions set forth in this Agreement, at the Closing the Company shall issue and sell to Purchaser, and Purchaser shall purchase from the Company, the number of Shares set forth below Purchasers name on the signature page of this Agreement at a per Share price equal to the Purchase Price."
"Section 4.1. Limitation on Beneficial Ownership. Notwithstanding anything herein to the contrary, Purchaser will not be entitled to purchase a number of Shares that would result in Purchaser, together with its Affiliates or any other Persons with which it is acting in concert or whose holdings would otherwise be required to be aggregated with Purchasers holdings for purposes of the BHC Act or the CIBC Act becoming, directly or indirectly, the beneficial owner (as determined under Rule 13d-3 under the Exchange Act) of more than 9.9% of the number of shares of Common Stock issued and outstanding (based on the number of outstanding shares as of the Closing Date)."
"(a) Representations and Warranties.The representations and warranties of the Company contained in Section 3.1 shall be true and correct in all respects as of the date hereof and as of the Closing Date, except for such representations and warranties that speak as of a specific date (which representations and warranties are so true and correct in all material respects as of such date)."
"(a) Representations and Warranties. The representations and warranties made byPurchaser in Section 3.2 hereof shall be true and correct in all material respects as of the date hereof and as of the Closing Date, except for such representations and warranties that speak as of a specific date (which representations and warranties are so true and correct as of such date)."
"Section 6.1. Fees and Expenses. Except as set forth herein and elsewhere in this Agreement, the parties hereto shall be responsible for the payment of all expenses incurred by them in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated hereby. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the Companys sale and issuance of the Shares to Purchaser."
"Section 6.5. Construction.The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement."
 | | | | | | ---|---|---|---|---|---|--- | Please complete Items 6  8 only if requesting DWAC delivery. |  | | 6. |  | Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained) and its DTC Participant Number; please include the name and telephone number of the contact person at the broker-dealer: | | | |  | DTCParticipant: |  |
"Upon the sale of the Mortgage Loans, the ownership of each related Note, the Sellers interest in the related Mortgage represented by the Note and the other contents of the related Mortgage File (subject to the rights of the holders of interests in any related Companion Loan) will be vested in the Purchaser and immediately thereafter the Trustee, and the ownership of records and documents with respect to each Mortgage Loan (other than those to be held by the holder of any related Companion Loan) prepared by or which come into the possession of the Seller shall (subject to the rights of the holders of interests in any related Companion Loan) immediately vest in the Purchaser and immediately thereafter the Trustee. In connection with the transfer pursuant to this Section1 of any Mortgage Loan that is part of a Loan Combination, the Seller does hereby assign to the Purchaser all of its rights, title and interest (solely in its capacity as the holder of the subject Mortgage Loan) in, to and under the related Co-Lender Agreement (it being understood and agreed that the Seller does not assign any right, title or interest that it or any other party may have thereunder in its capacity as the holder of any related Companion Loan, if applicable). The Sellers assignment of any Outside Serviced Mortgage Loan is subject to the terms and conditions of the applicable Outside Servicing Agreement and the related Co-Lender Agreement. The Purchaser will sell certain of the Certificates (the Public Certificates) to the underwriters (the Underwriters) specified in the Underwriting Agreement, dated as of May 17, 2016 (the Underwriting Agreement), between the Purchaser and the Underwriters, and the Purchaser will sell certain of the Certificates (the Private Certificates) to the initial purchasers (the Initial Purchasers and, collectively with the Underwriters, the Dealers) specified in the Purchase Agreement, dated as of May 17, 2016 (the Certificate Purchase Agreement), between the Purchaser and Initial Purchasers."
(c)With respect to any Mortgage Loan secured by any Mortgaged Property that is subject to a franchise agreement with a related comfort letter in favor of the Seller that requires notice to or request of the related franchisor to transfer or assign any such related comfort letter to the Trustee for the benefit of the Certificateholders or have a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing
"(i)The Seller is a corporation, duly organized, validly existing and in good standing under the laws of the State of New York with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the"
"(2) the loan-to-value ratio for the Other Crossed Loans (excluding the Affected Loan(s)) is not greater than the greatest of (A)the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the Cross-Collateralized Group (including the Affected Loan(s)) set forth in AnnexA to the Prospectus plus 10%, (B)the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the Cross- Collateralized Group (including the Affected Loan(s)) at the time of repurchase or replacement and (C) 75%; and"
"With respect to any Outside Serviced Mortgage Loan, the Seller agrees that if a material document defect (as such term or any analogous term is defined in the related Outside Servicing Agreement) exists under the related Outside Servicing Agreement with respect to the related Outside Serviced Companion Loan included in the related Outside Securitization Trust, and such Outside Serviced Companion Loan is repurchased by or on behalf of such Seller (or other responsible repurchasing entity) from the related Outside Securitization Trust as a result of such material document defect (as such term or any analogous term is defined in such Outside Servicing Agreement), then the Seller shall repurchase such Outside Serviced Mortgage Loan; provided, however, that such repurchase obligation does not apply to any material document defect (as such term or any analogous term is defined in the related Outside Servicing Agreement) related solely to the promissory note for such Outside Serviced Companion Loan."
"SECTION 11Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way"
"affect the validity or enforceability of the other provisions of this Agreement. Furthermore, the parties shall in good faith endeavor to replace any provision held to be invalid or unenforceable with a valid and enforceable provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable."
SECTION 18Amendment. This Agreement may be amended only by a written instrument which specifically refers to this Agreement and is executed by the Purchaser and the Seller. This Agreement shall not be deemed to be amended orally or by virtue of any continuing custom or practice. No amendment to the Pooling and Servicing Agreement which relates to defined terms contained therein or to any obligations or rights of the Seller whatsoever shall be effective against the Seller unless the Seller shall have agreed to such amendment in writing.
"(2) | The Cut-Off Date Balance of $54,000,000 represents the controlling note A-1-1 of a $200,000,000 loan combination evidenced by six pari passu notes. The companion loans, which are evidenced by the non-controlling notes A-1-2, A-2, A-3, A-4, and A-5 and have an outstanding principal balance of $146,000,000 as of the Cut-Off Date, are expected to be contributed to one or more future securitization transactions. Cut-Off Date LTV Ratio, LTV Ratio at Maturity, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the aggregate Cut-Off Date Balance of $200,000,000. ---|--- (3) | The Cut-Off Date Balance of $41,000,000 represents the controlling note A-1 of a $82,000,000 loan combination evidenced by two pari passu notes. The companion loan, which is evidenced by the non-controlling note A-2 (i) has an outstanding principal balance of $41,000,000 as of the Cut-Off Date, and (ii) as of the Cut-Off Date was expected to be, and as of the Closing Date has been, contributed to the JPMDB 2016-C2 securitization transaction. Cut-Off Date LTV Ratio, LTV Ratio at Maturity, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the aggregate Cut-Off Date Balance of $82,000,000. (4) | The Cut-Off Date Balance of $20,000,000 represents the non-controlling note A-2-1 portion of a whole mortgage loan (the Marriott Savannah Riverfront Mortgage Loan) with an aggregate outstanding balance of $40,000,000 as of the Cut-Off Date that will be contributed to the Trust on the Closing Date jointly by Citigroup Global Markets Realty Corp. (with respect to the non-controlling note A-2-1 in the amount of $20,000,000) and Cantor Commercial Real Estate Lending, L.P. (with respect to the controlling note A-1-1 in the amount of $20,000,000).The Marriott Savannah Riverfront Loan is part of the $73,500,000 Marriott Savannah Riverfront Loan Combination, which is collectively evidenced by six pari passu notes. The related companion loans, which are evidenced by the non-controlling notes A-1-2 and A-3 (currently held by Cantor Commercial Real Estate Lending, L.P.) and the non-controlling notes A-2-2 and A-4 (currently held by Citigroup Global Markets Realty Corp.) and have an aggregate outstanding principal balance as of the Cut-Off Date of $33,500,000, are expected to be contributed to one or more future commercial mortgage securitization transactions. Cut-Off Date LTV Ratio, LTV Ratio at Maturity, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the aggregate Cut-Off Date Balance of $73,500,000. (6) | The Cut-Off Date Balance of $17,150,000 represents the controlling note A-1 of a $31,000,000 loan combination evidenced by two pari passu notes. The companion loan, which is evidenced by the non-controlling note A-2 and has an aggregate principal balance of $13,850,000 as of the Cut-Off Date, is expected to be contributed to one or more future securitization transactions. Cut-Off Date LTV Ratio, LTV Ratio at Maturity, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the aggregate Cut-Off Date Balance of $31,000,000. (7) | The Cut-Off Date Balance of $12,000,000 represents the non-controlling note A-2-2-1 of a $93,000,000 loan combination evidenced by four pari passu notes. The companion loan, which is evidenced by notes A-1, A-2-1, and A-2-2-2, have an aggregate principal balance of $81,000,000 as of the Cut-Off Date. The controlling note A-1 ($50,000,000) was contributed to the CGCMT 2016-GC36 securitization transaction. The non-controlling note A-2-1 ($20,000,000) was contributed to the CGCMT 2016-GC37 securitization transaction.The non-controlling note A-2-2-2 ($11,000,000) is expected to be contributed to one or more future securitization transactions. Cut-Off Date LTV Ratio, LTV Ratio at Maturity, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the aggregate Cut-Off Date Balance of $93,000,000. "
"| (1)| Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Loan Combination, each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. Each Mortgage Loan that is part of a Loan Combination is a senior or pari passu portion of a whole loan evidenced by a senior or pari passu note. At the time of the sale, transfer and assignment to Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Seller), participation or pledge, and the Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement, any Outside Servicing Agreement with respect to an Outside Serviced Mortgage Loan and rights of the holder of a related Companion Loan pursuant to a Co-Lender Agreement. The Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan other than the rights of the holder of a related Companion Loan pursuant to a Co-Lender Agreement. ---|---|--- "
"| (5)| Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases to the Trust Fund constitutes a legal, valid and binding assignment to the Trust Fund. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagors fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth on ExhibitC (each such exception, a Title Exception)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-Off Date, to the Sellers knowledge, is free and clear of any recorded mechanics liens, recorded materialmens liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lenders title insurance policy (as described below), and, to the Sellers knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lenders title insurance policy (as described below). Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required in order to effect such perfection. ---|---|--- "
"An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than thirteen months prior to the Cut-Off Date. To the Sellers knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than deferred maintenance for which escrows were established at origination) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan."
"Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Loan Documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months)."
"If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or named storms issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms."
"The Mortgaged Property is covered, and required to be covered pursuant to the related Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by prudent institutional commercial mortgage lenders, and in any event not less than $1 million per occurrence and $2 million in the aggregate."
"| (24)| Local Law Compliance. To the Sellers knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architects letter, a zoning consultants report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively Zoning Regulations) with respect to the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan (or related Loan Combination, as applicable) or as of the Cut-Off Date, other than those which (i)are insured by the Title Policy or a law and ordinance insurance policy or (ii)would not have a material adverse effect on the value, operation or net operating income of the Mortgaged Property. The terms of the Loan Documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws. ---|---|--- "
"With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessors fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of the Seller, its successors and assigns, the Seller represents and warrants that:"
"| (37)| No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required debt service payments since origination and, as of the Cut-Off Date, no Mortgage Loan is more than 30 days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date. To the Sellers knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either (a) or (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Seller in this ExhibitB (including, but not limited to, the prior sentence). No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Loan Documents. ---|---|--- "
"| (44)| Advance of Funds by the Seller. After origination, no advance of funds has been made by the Seller to the related Mortgagor other than in accordance with the Loan Documents, and, to the Sellers knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Loan Documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a Mortgagee- controlled lockbox if required or contemplated under the related lease or Loan Documents). Neither the Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof. ---|---|--- "
"1.2 Commitment to Purchase the Preferred Shares. Subject to the terms and conditions of this Agreement, the Investor shall purchase from the Company the Preferred Shares, and the Company shall issue and deliver to the Investor stock certificates representing the Preferred Shares. Schedule 1.2 sets forth the number of Preferred Shares to be purchased by each Investor (each such number of Preferred Shares, an Investors Allocation)."
"2.12 Legal Power and Authority. The Company has all necessary power and authority to execute, deliver and perform its obligations under the Transaction Documents and to consummate the Transaction, and no stockholder actions are necessary for the Companys execution, delivery and performance of its obligations under the Transaction Documents and to consummate the Transaction."
"2.15 No Conflicts. Neither the execution, delivery or performance of the Transaction Documents nor the consummation of the Transaction (including the Use of Proceeds from the sale of the Preferred Shares as described above) will conflict with, violate, constitute a breach of or a default (with the passage of time or otherwise) or a Debt Repayment Triggering Event under, or result in the imposition of a Lien on any assets of the Company or any of its Subsidiaries, or the imposition of any penalty under or pursuant to (i) the Charter Documents, (ii) any Applicable Agreement, (iii) any Applicable Law or (iv) any order, writ, judgment, injunction, decree, determination or award binding upon the Company and the Subsidiaries. As used herein, a Debt Repayment Triggering Event means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries or any of their respective properties."
"2.18 All Necessary Permits. Other than the permits and accreditation contemplated in Section 2.42(d), each of the Company and the Subsidiaries possess all material licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all Governmental Authorities, presently required or necessary to own or lease, as the case may be, and to operate its properties and to carry on its businesses as now, or proposed to be, conducted as described in the Company Disclosure Package (Permits); each of the Company and the Subsidiaries has fulfilled and performed in all material respects all of its obligations with respect to such Permits; to the Knowledge of the Company or any Subsidiary, no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination of any such Permit or has resulted, or after notice or lapse of time would result, in any other material impairment of the rights of the holder of any such Permit the result of which would have a Material Adverse Effect; and none of the Company or the Subsidiaries has received or has any reason to believe it will receive any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Company Disclosure Package."
"2.24 Compliance with Environmental Laws. Each of the Company and the Subsidiaries (i) is in material compliance with any and all applicable U.S. or non-U.S. federal, state and local laws and regulations relating to health and safety, or the pollution or the protection of the environment or hazardous or toxic substances of wastes, pollutants or contaminants (Environmental Laws), (ii) has received and is in material compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its respective businesses and (iii) has not received notice of, and is not aware of, any actual or potential liability for damages to natural resources or the investigation or remediation of any disposal, release or existence of hazardous or toxic substances or wastes, pollutants or contaminants, in each case except where such non-compliance with Environmental Laws, failure to receive and comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of the Subsidiaries has been named as a potentially responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or any similar U.S. or non-U.S. state or local Environmental Laws or regulation requiring the Company or any of the Subsidiaries to investigate or remediate any pollutants or contaminants, except where such requirements would not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business. In the ordinary course of its business, the Company periodically reviews the effects of Environmental Laws on the business, operations and properties of the Company and the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs would not have a Material Adverse Effect."
"2.26 Accounting System. The Company and each of the Subsidiaries make and keep accurate books and, except as set forth on Schedule 2.6(a), records and maintain a system of internal accounting controls and procedures sufficient to provide reasonable assurance that transactions are executed in accordance with managements general or specific authorization, transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, and to maintain asset accountability, (iii) access to assets is permitted only in accordance with managements general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any material differences. The Companys independent auditors and board of directors have been advised of: (i) all material weaknesses and significant deficiencies (each, as defined in Rule 12b-2 of the Exchange Act), if any, in the design or operation of the Companys internal controls which could adversely affect the Companys ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or not material, that involves management or other employees who have a role in the Companys internal controls (whether or not remediated); all such material weaknesses and significant deficiencies, if any, have been disclosed in the Company Disclosure Package in all material respects; and, except as set forth on Schedule 2.6(b), since the date of the most recent evaluation of such internal controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses."
2.42 Education Approvals; Compliance with Education Laws. The following representations set forth in this Section 2.42 are subject to the exceptions set forth in the Regulatory Disclosure Schedule. It is understood and agreed that any matter disclosed in the Companys Disclosure Package that relates to the representations and warranties in this Section 2.42 shall be deemed to be included in the Regulatory Disclosure Schedule.
"(x) Since the Compliance Date, neither the Company nor any of its Subsidiaries, nor any owner that has the power, by contract or ownership interest, to direct or cause the direction or management of policies of any School has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy."
"3.5 Information; Knowledge of Business. The Investor is familiar with the business in which the Company is engaged. The Investor has knowledge and experience in financial and business matters; is familiar with the investments of the type that it is undertaking to purchase; is fully aware of the problems and risks involved in making an investment of this type; and is capable of evaluating the merits and risks of this investment. The Investor acknowledges that, prior to executing this Agreement, it (and each of its representatives) has had the opportunity to ask questions of and receive answers or obtain additional information from a representative of the Company concerning the financial and other affairs of the Company."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT, AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNLESS SUCH OFFER, SALE, TRANSFER OR"
"(e) Since the Compliance Date, neither such Investor nor any of its Subsidiaries nor any school owned by such Investor has knowingly employed in a capacity involving administration of funds under the Title IV Programs or the receipt of funds under the Title IV Programs, any individual who has been convicted of, or has pled nolo contendere or guilty to, a crime involving the acquisition, use or expenditure of funds of a Governmental Authority or Educational Agency, or has been administratively or judicially determined to have committed fraud or any other violation of law involving funds of a Governmental Authority or Educational Agency."
"6.6 No Reliance. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR IN ANY CERTIFICATE DELIVERED PURSUANT HERETO OR THERETO, NONE OF THE PARTIES OR ANY OTHER PERSON, INCLUDING ANY AFFILIATE OF ANY PARTY, MAKES ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH PARTIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND EACH PARTY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY SUCH PARTIES OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES (INCLUDING WITH RESPECT TO THE DISTRIBUTION OF, OR ANY SUCH PERSONS RELIANCE ON, ANY INFORMATION, DISCLOSURE OR OTHER DOCUMENT OR OTHER MATERIAL MADE AVAILABLE IN ANY DATA ROOM, MANAGEMENT PRESENTATION OR IN ANY OTHER FORM IN EXPECTATION OF, OR IN CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED HEREBY). EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR IN ANY CERTIFICATE DELIVERED PURSUANT HERETO OR THERETO, EACH PARTY HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY OTHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES (INCLUDING OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO ANY PARTY OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF SUCH PARTY OR ANY OF ITS AFFILIATES) WITH RESPECT TO SUCH PARTY OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT."
"Educational Agency means any person, entity or organization, whether governmental, government chartered, private, or quasi-private, that engages in granting or withholding Educational Approvals for, administers financial assistance to or for students of, or otherwise regulates private postsecondary schools, including without limitation the DOE, any state education department or agency, any guaranty agency, and any Accrediting Body."
"For purposes of clarity, (i)the provisions of this ArticleII are not intended to restrict or expand any right an end user may have to use a Licensed Product manufactured and sold during the Term of this Agreement in strict accordance with the license granted pursuant to this Section2.1 and (ii)the incorporation of a Licensed Product into another device or the combination of a Licensed Product with any other item(s) shall not negate the license with respect to such Licensed Product, but no license or immunity is granted by Seller under this Agreement directly or by implication, estoppel or otherwise for such device or such combination or the use of such device or such combination."
"2.2 Clarification Regarding Patent Laundering. The Parties understand, acknowledge and agree that the Patent license granted by Seller to Purchaser under Section2.1 above is intended to cover only products of Purchaser that meet the definition of Licensed Products and is not intended to cover any manufacturing activities that Purchaser may undertake on behalf of any third parties (i.e., Patent laundering activities). A product shall not be considered to be a Licensed Product unless such product is manufactured by or on behalf of Purchaser in strict accordance with the license granted by Seller to Purchaser pursuant to Section2.1 above and sold by Purchaser (either directly or through Purchasers distribution channels) as Purchasers own product and under Purchasers Mark(s) (or, solely as set forth in, and subject to, the Transition Services Agreement between Seller and Purchaser, dated of even date herewith (the Transition Services Agreement), Sellers Mark(s)), and otherwise complies with this Section2.2 and the other terms and conditions of this Agreement. Similarly, the Patent license granted by Seller to Purchaser under Section2.1 above is not intended to cover any services provided by Purchaser to the extent that such services are provided to or on behalf of any third party using tangible or intangible materials provided by or on behalf of any third party. Accordingly, by way of clarification, the following non-exhaustive general guidelines are provided to aid the determination of whether a product or portion thereof is a Licensed Product or whether such product or portion thereof is disqualified from being a Licensed Product because circumstances surrounding the manufacture of the product suggest Patent laundering."
"(c) In the event that Purchaser or any of its Affiliates (or any Purchaser Patent Successor) intends to sell, assign, transfer or convey (expressly or by operation of law or otherwise), or exclusively license or grant or convey any right to enforce or Assert, or otherwise dispose of any Purchaser Patent (Purchaser Patent Sale) to any third party, then, prior to such Purchaser Patent Sale, Purchaser (or such Purchaser Patent Successor) agrees to cause any such third party to grant a covenant not to sue with respect to such Purchaser Patent(s) in writing of the same scope and having all of the same terms as the covenant not to sue granted by Purchaser to Seller and the Covered Seller Parties in Section3.3(a) above. In the event Purchaser (or such Purchaser Patent Successor) is unable to cause any such third party to comply in full with the foregoing sentence prior to any such Purchaser Patent Sale, then, effective immediately prior to the closing of such Purchaser Patent Sale, Purchaser (or such Purchaser Patent Successor) agrees to grant and does hereby grant to Seller and its Affiliates a perpetual, irrevocable, non-exclusive, royalty-free, non-assignable (except as provided in Section8.2 hereof), sublicensable,"
"6.1 Disclaimer. Excepting only those representations and warranties, if any, that are expressly set forth in the Asset Purchase Agreement, and notwithstanding any provision of this Agreement, any Transfer Document or any other agreement to the contrary, Seller makes no warranty or representation to Purchaser with respect to any Intellectual Property rights. Nothing contained in this Agreement shall be construed as:"
"Integrated Circuit shall mean an integrated unit comprising one or more active and/or passive circuit elements associated on one or more substrates, such unit forming, or contributing to the formation of, a circuit for performing electrical functions (including, if provided therewith, housing and/or supporting means). The definition of Integrated Circuit shall also include any and all firmware, microcode or drivers, if needed to cause such circuit to perform substantially all of its intended hardware functionality, whether or not such firmware, microcode or drivers are shipped with such integrated unit or installed at a later time."
"Seller Licensed Trade Secrets shall mean the Trade Secrets (a)known to the Transferred Employees and/or (b)embodied by the Technical Information, and, in each case (a)and (b), to the extent not assigned to Purchaser pursuant to the Asset Purchase Agreement and existing with the Products. Notwithstanding the foregoing sentence, Seller Licensed Trade Secrets shall not include any Trade Secrets related to any Seller proprietary products and technologies not transferred to Purchaser under the Asset Purchase Agreement (including, without limitation, microprocessors, chipsets, flash memory and manufacturing ) or any Seller Proprietary Products."
"Performance; No Default. ---|---|---|--- The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing.Before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing."
"Funding Instructions. ---|---|---|--- At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section3 including (a)the name and address of the transferee bank, (b)such transferee banks ABA number/SWIFT code/IBAN and (c)the account name and number into which the purchase price for the Notes is to be deposited."
"Disclosure. ---|---|---|--- This Agreement and the financial statements referenced in the first sentence of Section 5.5 and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Companyprior to March 23, 2016in connection with the transactions contemplated hereby (this Agreement, such financial statements and such documents, certificates or other writings delivered to each Purchaser prior toMarch 23, 2016 being referred to, collectively, as the Disclosure Documents), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact"
"Compliance with Laws, Other Instruments, Etc. ---|---|---|--- The execution, delivery and performance by the Company of this Agreement and the Notes will not (i)contravene, result in any breach of, or constitute a default under, or result in the creation of any Lienin respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, by- laws, shareholders agreement or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (ii)conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (iii)violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary."
"Governmental Authorizations, Etc. ---|---|---|--- No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection withthe execution, delivery or performance by the Companyof this Agreement or the Notes, including, without limitation, any thereof required in connection with the obtaining of Euros to make payments under this Agreement or the Notes."
(c)The Company and its ERISA Affiliates have not incurred (i) withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material or (ii) any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan that individually or in the aggregate are Material.
"(d)The expected postretirement benefit obligation (determined as of the last day of the Companys most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company and its Subsidiaries is not Material."
"Private Offering by the Company. ---|---|---|--- Neither the Company nor anyone acting on its behalf has offered the Notes or any similar securities for sale to, or solicited any offer to buy the Notes or any similar securities from, or otherwise approached or negotiated in respect thereof with, the Purchasers and not more than three otherInstitutional Investors (of the type described in clauses (c) and (d) of the definition thereof), each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has, with respect to the Notes, engaged in any form of general solicitation or general advertising, as defined under Rule 502(c) of the Securities Act.The Company has provided each Purchaser an opportunity to discuss with the Companysmanagement the financial statements delivered pursuant to Section 5.5, as well as the Companys business, management, financial affairs and the terms and conditions of the offering of the Notes. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities laws of the jurisdiction of organization of the Company.  "
"(b)the Source is a separate account that is maintained solely in connection with such Purchasers fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or"
"(c)the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or"
"Reinvestment Yield means, with respect to the Called Principal of any Non- SwappedNote, the sum of (x) 0.50% (50 basis points) plus (y) the yield to maturity implied by (i) the ask-side yields reported, as of 10:00 a.m. (New York time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated Page PXGE on Bloomberg Financial Markets (or, if Bloomberg Financial Markets shall cease to report such yields on Page PXGE or shall, in the reasonable opinion of the Required Holders, cease to be a customary source of information for calculating yield-maintenance amounts on privately placed notes, then such alternative source of such information as reasonably selected by the Required Holders) for the actively traded benchmark German Bunds having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or if such yields are not reported as of such time or the yields reported shall not be ascertainable, (ii) the average of the ask-side yields for such securities as"
"(b)The term Make-Whole Amount means, with respect to any Swapped Note, an amount equal to the excess, if any, of the Swapped Note Discounted Value of the Swapped Note Remaining Scheduled Swap Payments with respect to the Swapped Note Called Notional Amount related to a Swapped Note over such Swapped Note Called Notional Amount; provided that the Make-Whole Amount may in no event be less than zero.All payments of Make-Whole Amount shall be made in Dollars.For the purposes of determining the Make-Whole Amount (and for the purposes of determining any Net Loss, Net Gain or Swap Breakage Amount in accordance with Section 8.10 below), the following terms have the following meanings:"
"Swapped Note Discounted Value means, with respect to the Swapped Note Called Notional Amount of any Swapped Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires, the amount obtained by discounting all Swapped Note Remaining Scheduled Swap Payments corresponding to the Swapped Note Called Notional Amount of such Swapped Note from their respective scheduled due dates to the Swapped Note Settlement Date with respect to such Swapped Note Called Notional Amount, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on such Swapped Note is payable) equal to the Swapped Note Reinvestment Yield with respect to such Swapped Note Called Notional Amount."
"yields reported as of 10:00 A.M. (New York City time) on the second Business Day preceding the Swapped Note Settlement Date with respect to such Swapped Note Called Notional Amount, on the display designated as Page PX1(or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on the run U.S. Treasury securities having a maturity equal to the Swapped Note Remaining Average Life of such Swapped Note Called Notional Amount as of such Swapped Note Settlement Date or (ii) if such ask-side yields are not reported as of such time or the yields reported as of such time are not ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Swapped Note Settlement Date with respect to such Swapped Note Called Notional Amount, in U.S. Federal Reserve Statistical Release H.15 (or any comparable successor publication) for applicable on the run U.S. Treasury securities having a constant maturity equal to the Swapped Note Remaining Average Life of such Swapped Note Called Notional Amount as of such Swapped Note Settlement Date.In the case of each determination under clause (i) or clause (ii), as the case may be, of this definition, such implied yield will be determined, if necessary, by (A) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (B) interpolating linearly between (1) the applicable on the run U.S. Treasury security with the maturity closest to and greater than such Swapped Note Remaining Average Life and (2) the applicable on the run U.S. Treasury security with the maturity closest to and less than such Swapped Note Remaining Average Life.The Swapped Note Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Swapped Note."
"Change of Control Prepayment Offer. ---|---|---|--- (a)A Change of Control Prepayment Event occurs if: (x)a Change of Control occurs or any condition in the nature of a Change of Control exists and, asaconsequencethereof, the Company or any Subsidiary has become obligated to purchase, repay or redeem a Material Amount of Applicable Long- Term Financing(s) before its (or their) regular maturity or mandatory redemption date or before its (or their) regularly scheduled dates of payment or redemption; (y) a Change of Control occurs or any condition in the nature of a Change of Control exists under the Principal Bank Facility and a Material Amount of any Indebtedness thereunder has been declared, or has become, due and payablebeforeits stated maturity or before its regularly scheduled dates of payment, or (z) within the period of 90 days from and including the date on which a Change of Control occurs (or such longer period as the rating of any Rated Securities or Issuer Credit Rating shall be under publicly announced consideration by any Rating Agency), either (i) there are Rated Securities or an Issuer Credit Rating outstanding at the time of such Change of Control and a Rating Downgrade in respect of that Change of Control occurs or (ii) at such time there are no Rated Securities nor Issuer Credit Rating and the Company fails to obtain (whether by failing to seek a rating or otherwise) either a rating of the Notes or any other unsecured and unsubordinated Indebtedness of the Company having an initial maturity of five years or more (and which does not have the benefit of a guarantee from any Person other than any such Person that at such time also so guarantees the obligations of the Company under this Agreement and the Notes) or an Issuer Credit Rating from a Rating Agency, in either case, of at least Investment Grade (a Negative Rating Event), in each case after giving pro forma effect to the transaction giving rise to such Change of Control (that Change of Control and the related Rating Downgrade or, as the case may be, Negative Rating Event, together (but not individually) constituting the Change of Control Prepayment Event)."
"(viii)Rating Downgrade shall be deemed to have occurred in respect of a Change of Control if (a) the rating(s) assigned to the Rated Securities (whether provided at the invitation of the Company or of its own volition) or (b) the Issuer Credit Rating, in either case, which is/are current immediately before the time the Change of Control occurs, (i) if Investment Grade, is/are either lowered by the relevant number of Rating Agencies to below Investment Grade or withdrawn and not replaced by an Investment Grade rating of the relevant number of Rating Agencies or (ii) if below Investment Grade, is/are not replaced by an Investment Grade rating of the relevant"
"as of 10:00 A.M. (New York City time) on the day such Swapped Note is prepaid, repaid, purchased or accelerated as indicated on the applicable screen of Bloomberg Financial Markets and any such calculation shall be reported to the Company in reasonable detail and shall be binding on the Company absent demonstrable error. For purposes of the foregoing terms Net Loss and Net Gain:"
"Maintenance of Properties. ---|---|---|--- Subject to Section 10.2, the Company will, and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section 9.3 shall not prevent the Company or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Company has concluded that such discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"Transactions with Affiliates. ---|---|---|--- Other than Excluded Transactions, the Company will not and will not permit any Subsidiary to enter into directly or indirectly any transaction or group of related transactions (including, without limitation, the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate, except pursuant to the reasonable requirements of the Companys or such Subsidiarys business and upon fair and reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a comparable arms-length transaction with a Person not an Affiliate."
"No such conveyance, transfer or lease of substantially all of the assets of the Company or any Subsidiary Guarantor shall have the effect of releasing the Company or such Subsidiary Guarantor or any successor REIT, corporation or limited liability company that shall theretofore have become such in the manner prescribed in this Section10.2 from its liability under this Agreement, the Notes or any Subsidiary Guaranty Agreement, as applicable."
"Ratio of Adjusted EBITDA to Fixed Charges. ---|---|---|--- The Company shall not permit the ratio of (a) Adjusted EBITDA of the Company and its Subsidiaries determined on a consolidated basis for the four fiscal quarter period most recently ended to (b) Fixed Charges of the Company and its Subsidiaries determined on a consolidated basis for such four fiscal quarter period, to be less than 1.5 to 1.0 at the end of each fiscal quarter."
"Upon any Notes becoming due and payable under this Section12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (includinginterest accrued thereon in respect of the Notes at the Default Rate, if applicable) and (y) the Make-Whole Amount (if any)plus the Net Loss due on any Swapped Notes (if any), less in each case any Net Gain with respect to such Swapped Notes (if any),determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived.The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances."
"(b)Without limiting the foregoing, each Purchaser and each subsequent holder of any Note severally agrees that it will notdirectly or indirectly, resell any Notes purchased by it to a Person which is a Competitor(it being understood that such Purchaser shall advise any broker or intermediary acting on its behalf that such resale to a Competitoris prohibited hereby). The Company shall not be required to recognize any sale or other transfer of a Note to a Competitorand no such transfer shall confer any rights hereunder upon such transferee."
"(a)in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $100,000,000 (or its equivalent in any other currency) or a Qualified Institutional Buyer, such Persons own unsecured agreement of indemnity shall be deemed to be satisfactory), or"
"(b)in the case of mutilation, upon surrender and cancellation thereof,within ten Business Days thereafter the Company at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon."
"Place of Payment. ---|---|---|--- Subject to Section 14.2, payments of principal, Make-Whole Amount, if any,Net Loss on any Swapped Note, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of JPMorgan Chase Bank, N.A. in such jurisdiction.The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction."
Company in exchange for a new Note or Notes pursuant to Section 13.2.The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.
"Transaction Expenses. ---|---|---|--- Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys fees of a special counsel for all of the holders of the Notes and, if reasonably required by the Required Holders, local or other counsel for all of the holders of the Notes) incurred by the Purchasers and each other holder of a Note in connection with such transactions, the Notes and any Subsidiary Guaranty Agreement and in connection with any amendments, waivers or consents under or in respect of this Agreement, the Notes or any Subsidiary Guaranty Agreement (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, the Notes or any Subsidiary Guaranty Agreement or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Notes or any Subsidiary Guaranty Agreement, or by reason of being a holder of any Note, (b) the costs and expenses, including one financial advisors fees for all of the holders of the Notes, incurred in connection with the insolvency or bankruptcy of theCompany or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes or any Subsidiary Guaranty Agreement and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO, provided that such costs and expenses under this clause (c) shall not exceed $3,000.The Company will pay, and will save each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes) and (ii) any and all wire transfer fees that any bank deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note."
"Requirements. ---|---|---|--- This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and only with) the written consent of the Companyand the Required Holders, except that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing and (b) no such amendment or waiver may, without the written consent of the holder of each Note at the time outstanding affected thereby, (i) subject to the provisions of Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest or of the Make-Whole Amount on, or Net Loss, Net Gain or Swap Breakage Amount (as applicable) in relation to,the Notes, (ii) change the percentage of the principal amount of the Notes the holders of which are required to consent to any such amendment or waiver, or (iii) amend Section 8(except as set forth in the second sentence of Section 8.2), 11(a), 11(b), 12, 17, 20, 22.8 or 22.9 or any defined term (as it is used therein)."
"(i)if to a Purchaser or its nominee, to such Purchaser or its nominee at the address specified for such communications in Schedule B, or at such other address as such Purchaser or its nominee shall have specified to the Company in writing (together with a hard copy if requested by such Purchaser),"
"REPRODUCTION OF DOCUMENTS. ---|---|---|--- This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital or other similar process and such Purchaser may destroy any original document so reproduced.The Companyagrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.This Section 19 shall not prohibit the Companyor any holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction."
"SUBSTITUTION OF PURCHASER. ---|---|---|--- Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliates agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Section 6.Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 21), shall be deemed to refer to such Affiliate in lieu of such original Purchaser.In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a Purchaser in this Agreement (other than in this Section 21), shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement."
"(b)Any payment on account of an amount that is payable hereunder or under the Notes in Dollars which is made to or for the account of any holder of Notes in any other currency, whether as a result of any judgment or order or the enforcement thereof or the realization of any security or the liquidation of the Company shall constitute a discharge of the obligation of the Companyunder this Agreement or the Notes only to the extent of the amount of Dollars which such holder could purchase in the foreign exchange markets in London, England, with the amount of such other currency in accordance with normal banking procedures at the rate of exchange prevailing on the London Banking Day following receipt of the payment first referred to above.If the amount of Dollars that could be so purchased is less than the amount of Dollars originally"
"FATCA Information. ---|---|---|--- By acceptance of any Note, the holder of such Note agrees that such holder will from time to time with reasonable promptness duly complete and deliver to or as reasonably directed by the Companyor any of its agents from time to time (i) in the case of any such holder that is a U.S. Person, such holders United States tax identification number or other forms reasonably requested by the Company necessary to establish such holders status as a U.S. Person under FATCA and as may otherwise be necessary for the Companyto comply with its obligations under FATCA and (ii) in the case of any such holder that is not a U.S. Person, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation as may be necessary for the Companyto comply with its obligations under FATCA and to determine that such holder has complied with such holders obligations under FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder.Nothing in this Section 22.10 shall require any holder of Notes to provide information that is confidential or proprietary to such holder unless such information is prescribed by applicable law for the Companyto comply with its obligations under FATCA and, in such event, the Companyshall treat such information as confidential."
"Derivatives Contract means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.Not in limitation of the foregoing, the term Derivatives Contract includes any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement."
"holder means, with respect to any Note the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section13.1; provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 12, 17.2 and 18 and any related definitions in this Schedule A, holder shall mean the beneficial owner of such Note whose name and address appears in such register."
"or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the filing of any financing statement under the UCC or its equivalent in any jurisdiction; and (d) any agreement by such Person to grant, give or otherwise convey any of the foregoing."
"Management Revenues means, for any period, an amount equal to the aggregate sum of revenues for such period earned by the Company and its Subsidiaries on a pro forma basis from providing management and advisory services under Management Contracts (determined on a consolidated basis in accordance with GAAP), including asset management revenue, performance revenue, structuring revenue, advisor's participation in cash flow (if any), interest income or any revenue earned as stipulated in a Management Contract and booked for financial reporting purposes, and distributions received for such period related to the ownership of equity in managed funds and Managed REITs but excluding revenue related to reimbursed costs; provided, however, that Management Revenues shall exclude any revenues earned under Management Contracts, or distributions received, by the Company and its Subsidiaries on a pro forma basis from a current Subsidiary that has not been a Subsidiary for the entirety of such period."
"Principal Bank Facility means that certain Amended and Restated Credit Agreement, dated as of March 21, 2012 by and among the Company, Wells Fargo Securities, LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (as Joint Lead Arrangers and Joint Bookrunners), Wells Fargo Bank, National Association (as Agent), Bank of America, N.A. (as Syndication Agent) and each of the other financial institutions listed more fully therein, as the same may be amended or modified from time to time including, without limitation, by that certain Third Amendment thereto dated as of March 31, 2015, and any successor or replacement syndicated credit facility or bilateral credit facility of the Company entered into to refinance or replace such facility so long as the"
"defense by the Guarantor, including, without limitation, any failure or delay in the enforcement of the obligations of the Guarantor with respect to this Guaranty Agreementor any of the Agreement, the Notes or any other Subsidiary Guaranty Agreement or of notice thereof; or any suit or other action brought by any shareholder or creditor of, or by, the Guarantor or any other Person, for any reason, including, without limitation, any suit or action in any way attacking or involving any issue, matter or thing in respect of this Guaranty Agreement, the Agreement or the Notes or any other agreement;"
"(c)Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Guaranty Agreement, or have directed the taking of any action provided herein to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding."
"Notes, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by such holder from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder, under the Agreement or under the Notes or under any judgment or order.  "
"Business Day means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in the city of New York, New York or Toronto, Ontario. In the event that any action is required or permitted to be taken under this Agreement on or by a date that is not a Business Day, such action may be taken on or by the Business Day immediately following such date."
"Sanctions List means any of the lists of specially designated nationals or designated persons or entities (or equivalent) held by the U.S. government and administered by OFAC, the U.S. State Department, the U.S. Department of Commerce or the U.S. Department of the Treasury or any similar list maintained by any other U.S. government entity, the United Nations Security Council, the European Union, or Her Majestys Treasury, in each case as the same may be amended, supplemented or substituted from time to time."
"(c) At any time from and after the date of this Agreement, upon a written request from the Investor, the Company and the Investor shall use reasonable best efforts to agree to and enter into a voting agreement on customary terms pursuant to which the Investor shall agree to vote all Common Stock Beneficially Owned by the Investor (including Common Stock to be issued upon conversion of the Acquired Series A Shares and any Common Stock received by the Investor as a dividend on Acquired Series A Shares) in excess of 9.99% of the outstanding shares of the Common Stock (calculated on an as-converted basis with respect to the Acquired Series A Shares) (such excess amount, from time to time, the Incremental Shares) for or against any matter to be voted on by the Companys equityholders in the same proportion as the Companys equityholders other than the Investor vote on such matter until such time as the Investor elects to terminate such voting agreement (which termination shall be effective only at such time as all regulatory approvals required for the Investor to exercise voting rights with respect to the Incremental Shares have been received)."
"(h) subject to Section 2.06, the Closing Equity Commitment Premium, without any deduction, withholding or set-off of any kind, by wire transfer in immediately available funds to a bank account to be designated by the Investor in a written notice to the Company at least five (5) Business Days prior to the Closing."
"benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, deed of trust, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of its Subsidiaries or result in the creation of any Liens upon any of the properties or assets of the Company or any of its Subsidiaries, (ii)conflict with or result in any violation of any provision of the articles of incorporation or by-laws or other equivalent organizational document, in each case as amended, of the Company or any of its Subsidiaries, or (iii)conflict with or violate any applicable Law, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect."
"(a) The SEC Reports, when they became effective or were filed with the SEC, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the SEC thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make such statements, in the light of the circumstances in which they were made, not misleading."
"received notice of any threatened audit, examination, investigation or other proceeding from any Governmental Authority for any unpaid Taxes asserted against the Company or any of its Subsidiaries, which have not been fully paid or settled, and (ii) neither the Company nor any of itsSubsidiaries has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any Tax which has not yet expired;"
"Section 4.02 Authorization of Agreements; Enforceability. Each of this Agreement, the Equity Commitment Letter and the Investor Rights Agreement, the performance by the Investor and OMERS Administration Corporation of its obligations hereunder and thereunder, and the consummation by the Investor of the transactions contemplated hereby and thereby have been duly authorized by all requisite limited partnership action on the part of the Investor. This Agreement and the Equity Commitment Letter have been and, prior to the Closing, the Investor Rights Agreement will be, validly executed and delivered by the Investor and OMERS Administration Corporation and constitute or will constitute valid and binding obligations of the Investor and OMERS Administration Corporation, enforceable against the Investor in accordance with their respective terms, except as enforcement may be limited by general principles of equity whether applied in a court of Law or a court of equity, and by applicable bankruptcy, insolvency and similar Law affecting creditors rights and remedies generally."
"Section 4.04 Absence of Defaults and Conflicts.The execution and delivery by the Investor of this Agreement and by OMERS Administration Corporation of the Equity Commitment Letter do not, and the execution and delivery of the Investor Rights Agreement will not, and the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not (i)result in any violation of, or default (with or"
"Section 4.07 Ownership of Common Stock.Except for (i) 15,444 shares of Common Stock owned by OMERS Administration Corporation as of the date of this Agreement and (ii) the Acquired Series A Shares which the Investor will acquire at the Closing, none of the Investor or its Affiliates Beneficially Owns any shares of Common Stock, or any securities that are convertible into, or exercisable or exchangeable for, or that represent the right to receive, shares of Common Stock or has entered into any Hedging Arrangement or Derivative Contract."
(a) The Investor is an accredited investor within the meaning of Rule501 of Regulation D under the Securities Act and is able to bear the risk of its investment in the Acquired Series A Shares for an indefinite period. The Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Shares. The Investor is able to bear the economic risk of an investment in the Acquired Series A Shares and is able to afford a complete loss of such investment.
Acquired Series A Shares or any interest therein except in a transaction registered pursuant to the provisions of the Securities Act or in a transaction exempt from or not subject to the registration requirements of the Securities Act.The purchase of the Acquired Series A Shares by the Investor has not been solicited by or through anyone other than the Company.
"(d) The Investor understands and acknowledges that, until such time as the Acquired Series A Shares have been registered pursuant to the provisions of the Securities Act, or the Acquired Series A Shares are eligible for resale pursuant to Rule144 promulgated under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Acquired Series A Shares will bear the following restrictive legend: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE144 UNDER SUCH ACT OR THE ISSUER HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT (WHICH MAY INCLUDE AN OPINION OF COUNSEL) THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS."
"(a) For so long as the Investor Beneficially Owns at least five percent(5%) of the Common Stock (on an as-converted basis), upon reasonable notice, the Company shall, subject to applicable Law, afford the Investor and its Representatives reasonable access, during normal business hours, to the offices, personnel, books and records of the Company and its Subsidiaries."
"(a) Representations and Warranties.The representations and warranties of the Investor contained in this Agreement shall be true and correct, in each case, as of the Closing Date as if made at and as of such date (except to the extent such representation or warranty is made as of an earlier date) unless such failure to be true and correct (disregarding all qualifications and exceptions contained therein regarding materiality) would not, individually or in the aggregate, materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Equity Commitment Letter or the Investor Rights Agreement or the performance by the Investor or OMERS Administration Corporation or of its obligations hereunder or thereunder;"
"Section 7.01 Survival of Representations, Warranties, Covenants and Agreements.The representations and warranties of the Parties contained in this Agreement shall survive for twelve (12)months following the Closing; provided, however, that the representations and warranties of the Company set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.05, 3.07 (except clauses (c) and (d) thereof), 3.08, 3.15, 3.22 and 3.23, and the representations and warranties of the Investor set forth in Sections 4.01, 4.02, 4.03, 4.04, 4.07, 4.08, 4.09 and 4.10 (collectively, excluding Section 3.15, the Fundamental Representations) shall survive until the date that is ninety(90) days following expiration of the applicable statute of limitations.All of the covenants or other agreements of the Parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non- compliance with such covenants or agreements is waived in writing by the Party entitled to such performance."
"(a) any inaccuracy in or breach of the representations or warranties made by the Investor in Article IV as of the date of this Agreement or as of the Closing Date (in each case, except to the extent expressly made as of an earlier date, in which case as of such earlier date); and"
"(d) All indemnifiable Losses shall be determined without duplication of recovery under other provisions of this Agreement. Without limiting the generality of the prior sentence, if a set of facts, conditions or events constitutes a breach of more than one representation, warranty, covenant or agreement of this Agreement that is subject to an indemnification obligation under this ArticleVIII, only one recovery of indemnifiable Losses shall be allowed with respect to such set of facts, conditions or events, and in no event shall there be any indemnification or duplication of payments or recovery under different provisions of this Agreement arising out of the same set of facts, conditions or events."
"(b) If an Action is brought against an Indemnified Party by a third party, the Indemnifying Party shall be entitled to, by written notice to the Indemnified Party, assume control of, and conduct the defense of, such Action with counsel reasonably acceptable to the Indemnified Party and, in such case, shall not be liable for legal or other expenses incurred by the Indemnified Party in connection with the defense of such Action following the assumption of such defense; provided that the Indemnifying Party shall not be permitted to assume the defense of an Action, and shall be required to be liable for reasonable legal or other expenses incurred by the Indemnified Party in connection with the defense of such Action, in the event (x) the Indemnified Party shall have reasonably concluded that there may be legal defenses available to"
"it that are different from or in addition to those available to the Indemnifying Party or that there is otherwise a conflict of interest between the Indemnified Party and the Indemnifying Party or (y) the Indemnifying Party has failed within a reasonable timeframe to retain counsel reasonably satisfactory to the Indemnified Party. In the event the Indemnifying Party does assume such control and defense, the Indemnified Party shall be entitled to hire, at its own expense, separate counsel and participate in (but not control) the defense thereof. The Indemnifying Party shall reimburse the Indemnified Parties for all reasonable out-of-pocket expenses (including reasonable attorneys fees and disbursements) as they are incurred in connection with investigating, preparing to defend or defending any such Action (including any inquiry or investigation) whether or not an Indemnified Party is a party thereto unless, in each case, the Indemnified Parties are not entitled to reimbursement of such expenses pursuant to the terms of this Section 8.04."
"Section 10.04 Entire Agreement.This Agreement (including the exhibits hereto and the Disclosure Schedules, the Investor Rights Agreement, the Equity Commitment Letter and the Confidentiality Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, between the Company and the Investor with respect to the subject matter hereof and thereof."
"(b) Notwithstanding anything to the contrary that may be expressed or implied in this Agreement, the Investor, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no Person other than the Company and its respective successors and permitted assignees shall have any obligation hereunder, and that it has no rights of recovery against, and no recourse hereunder against, any former, current or future director, officer, agent, advisor, attorney, Representative, Affiliate, manager or employee of the Company (or any of its successors or assignees), against any former, current or future general or limited partner, manager, member or stockholder of the Company, or any Affiliate thereof or against any former, current or future director, officer, agent, advisor, attorney, Representative, employee, Affiliate, assignee, general or limited partner, stockholder, manager or member of any of the foregoing, whether by or through attempted piercing of the corporate veil, by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, except that, notwithstanding the foregoing, nothing in this Section 10.14(b) shall limit the Investors rights or remedies under the Investor Rights Agreement."
"1 | Per the SPA, also subject to adjustment to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), extraordinary dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after 5/29/2016 and prior to the Issue Date. ---|--- 2 | First such date after the issuance. ---|--- "
"For purposes of clauses (i)and (ii)of this definition of Market Disruption Event, the relevant exchange or quotation system will be the New York Stock Exchange; provided that if the Common Stock (or any other security into which the Mandatory Convertible Preferred Stock becomes convertible in connection with any Reorganization Event) is not listed on the New York Stock Exchange, the relevant exchange or quotation system will be the principal national securities exchange on which the Common Stock (or such other security) is listed for trading."
"inversely proportional to any adjustment to each Fixed Conversion Rate as set forth in Section11 (such dollar amount, as adjusted from time to time, the Floor Price). To the extent that the amount of any declared dividend exceeds the product of (x)the number of shares of Common Stock delivered in connection with such declared dividend and (y)90% of the Dividend Payment Average Price, the Corporation shall, if it is legally able to do so, notwithstanding any notice by the Corporation to the contrary, pay such excess amount in cash, and any amounts not so paid shall continue to be owed by the Corporation as accumulated dividends."
"Stock, in whole or in part (but in no event less than one share Mandatory Convertible Preferred Stock) (any conversion pursuant to this Section6, an Optional Conversion), at any time prior to the Mandatory Conversion Date, other than during the Fundamental Change Conversion Period, into shares of Common Stock at the Minimum Conversion Rate, subject to adjustment in accordance with Section11\."
"(ii) if the shares of Mandatory Convertible Preferred Stock converted are held in book-entry form through the facilities of the Depositary or in the books of the Transfer Agent, promptly following the relevant Optional Conversion Date or Fundamental Change Holder Conversion Date, as the case may be, the Corporation shall cause the Transfer Agent and Registrar to reduce the number of shares of Mandatory Convertible Preferred Stock (A) represented by the global certificate by making a notation on Schedule I attached to the relevant Global Preferred Share or (B) reflected in the books of the Transfer Agent, as applicable."
"(i) If the Corporation issues Common Stock as a dividend or distribution to all or substantially all holders of the Common Stock, or if the Corporation effects a subdivision or combination (including, without limitation, a stock split or a reverse stock split) of the Common Stock, each Fixed Conversion Rate shall be adjusted based on the following formula:"
"| | ---|---|--- CR0= |  | the Fixed Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the Record Date for such issuance; | CR1= |  | the Fixed Conversion Rate in effect immediately after 5:00 p.m., New York City time, on such Record Date; | OS0 = |  | the number of shares of Common Stock outstanding immediately prior to 5:00 p.m., New York City time, on such Record Date; | X= |  | the number of shares of Common Stock issuable pursuant to such rights, options or warrants; and | Y= |  | the aggregate price payable to exercise such rights, options or warrants, divided by the Average VWAP per share of Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance. Any increase in the Fixed Conversion Rates made pursuant to this Section11(a)(ii) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such issuance. To the extent such rights, options or warrants are not exercised prior to their expiration or termination, each Fixed Conversion Rate shall be decreased, effective as of the date of such expiration or termination, to the Fixed Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, each Fixed Conversion Rate shall be decreased, effective as of the earlier of (a)the date the Board of Directors determines not to issue such rights, options or warrants and (b)the date such rights, options or warrants were to have been issued, to the Fixed Conversion Rate that would then be in effect if such issuance had not been announced."
"(iii) If the Corporation pays a dividend or other distribution to all or substantially all holders of Common Stock of shares of the Corporations capital stock (other than Common Stock), evidences of the Corporations indebtedness, the Corporations assets or rights to acquire the capital stock, indebtedness or assets of the Corporation, excluding:"
"(A) rights, options or warrants distributed by the Corporation to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Corporations capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (Trigger Event):"
"(iv) If the Corporation pays a distribution consisting exclusively of cash to all or substantially all holders of the Common Stock, excluding (A) any regular quarterly cash dividends or distributions of up to $0.2625 per share of Common Stock (the Initial Dividend Threshold), (B) any distribution in connection with the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, (C) any distribution in connection with a Reorganization Event that is included in Exchange Property under Section 11(e) and (D) any consideration paid as a part of a tender or exchange offer covered by Section 11(a)(iv), each Fixed Conversion Rate shall be increased based on the following formula:"
The amendment to the Certificate of Designations providing that the Mandatory Convertible Preferred Stock shall be convertible into Exchange Property shall also provide for anti-dilution and other adjustments and modifications to thresholds that are as nearly equivalent as possible to the adjustments and thresholds described under this Section11 taking into account the relative values of one share of Common Stock and one Unit of Exchange Property. The Corporation shall not become a party to any Reorganization Event unless the terms of such transaction are consistent with this Section11(e).
"The Corporation (or any successor thereof) shall, as soon as reasonably practicable (but in any event within five Business Days) after the occurrence of any Reorganization Event, provide written notice to the Holders of such occurrence of such Reorganization Event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property. Failure to deliver such notice shall not affect the operation of this Section11(e) or the effectiveness of such Reorganization Event."
"(i) to cure any ambiguity or mistake, or to correct or supplement any provision contained in this Certificate of Designations that may be defective or inconsistent with any other provision contained in this Certificate of Designations, in each case that does not adversely affect the rights of the Holders of the Mandatory Convertible Preferred Stock;"
"(b) The Corporation is not required to issue any certificate representing the Mandatory Convertible Preferred Stock on or after the Mandatory Conversion Date. In lieu of the delivery of a replacement certificate following the Mandatory Conversion Date, the Transfer Agent, upon delivery of the evidence and indemnity described in clause (a)above, shall deliver the shares of Common Stock issuable, along with any other consideration payable or deliverable, pursuant to the terms of the Mandatory Convertible Preferred Stock formerly evidenced by the certificate."
"SECTION 20. Transfer Agent, Registrar, Conversion and Dividend Disbursing Agent. The duly appointed Transfer Agent, Registrar, Conversion and Dividend Disbursing Agent for the Mandatory Convertible Preferred Stock shall be Computershare Trust Company, N.A. The Corporation may, in its sole discretion, remove the Transfer Agent in accordance with the agreement between the Corporation and the Transfer Agent; provided that the Corporation shall appoint a successor transfer agent who shall accept such appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders."
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION (DTC), TO THE CORPORATION OR THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE& CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE& CO., HAS AN INTEREST HEREIN."
"(Signature must be guaranteed by an eligible guarantor institution that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Transfer Agent, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Transfer Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)"
"Hedging Arrangements means a hedge, call, swap, collar, floor, cap, option, forward sale or purchase or other contract or similar arrangement (including any obligations to purchase or sell any commodity or security at a future date for a specific price) with respect to any Equity Securities or debt or hybrid securities of Prairie."
"(b) In connection with a Piggyback Registration, Prairie will at least two (2) Business Days prior to the anticipated filing of the initial Registration Statement that identifies the Holders and any related Prospectus or any amendment or supplement thereto (other than amendments and supplements that do nothing more than name additional Holders and provide information with respect thereto), (i) furnish to such Holders copies of all Registration Statements that identify the Holders and any related Prospectus or any amendment or supplement thereto (other than amendments and supplements that do nothing more than name additional Holders and provide information with respect thereto) prior to filing and (ii) use reasonable best efforts to address in each such document when so filed with the Commission such comments as such Holders or their counsel reasonably shall propose prior to the filing thereof."
"(b) Until the first date that Purchaser and any Affiliates cease to Beneficially Own in the aggregate at least 5% of the then-outstanding Common Stock, Purchaser shall not, and shall cause its Affiliates not to, enter into any Hedging Arrangements.Notwithstanding the foregoing, nothing in this Agreement shall limit the ability of Purchaser or any of its Affiliates to enter into any Hedging Arrangement (including short sales) with respect to any date on which the Average VWAP (as defined in the Certificate of Designations of Series A Preferred Stock) is determined, and with respect to such number of shares of Common Stock that Purchaser shall be expected to receive measured by reference to such date."
"(vii) Prior to designating a Designated Director, Purchaser shall, to the extent requested in writing by Prairie, enter into a written agreement in a form reasonably satisfactory to Prairie with the Designated Director whereby such Designated Director agrees to resign as a member of the Board upon a Resignation Event, a Termination Event or at Purchasers request, as applicable. Purchaser acknowledges and agrees that such an agreement is in the best interest of Prairie and Purchaser, and that Prairie shall be a third- party beneficiary of the terms and conditions of such an agreement, and Prairie shall have the right to enforce such an agreement to the same extent as the parties thereto."
"paid or given directly or indirectly for soliciting such conversion, and provided further that the Conversion Shares so deliverable are not exchanged in a case under Title 11 of the United States Code.We do not express any opinion concerning any subsequent reoffer or resale of any such shares deliverable upon conversion. The resolutions of the Board of Directors of the Company approving the issuance of the Acquired Series A Shares state that they have reserved the Conversion Shares for issuance."
"The Issuer is a direct Subsidiary of the Company. The Subordinated Creditors have made and may from time to time make loans and advances to other Subordinated Creditors, subject to the terms and conditions contained in the Note Purchase Agreement, including, without limitation, the subordination of such obligations to the obligations of the Subordinated Creditors under the Note Purchase Agreement and the other Transaction Documents. The execution and delivery of the Note Purchase Agreement by the Noteholders is conditioned on, among other things, the execution and delivery by each Subordinated Creditor of a Second Amended and Restated Subordination Agreement in the form hereof. In order to induce the Noteholders to enter into the Note Purchase Agreement and the Facility, the Subordinated Creditors have agreed to enter into this Agreement with the Noteholders."
"Section 1Definitions, Terms. References to this Agreement shall be to this Second Amended and Restated Subordination Agreement as amended, supplemented, or otherwise modified from time to time. The term Senior Obligations shall mean, collectively, the due and punctual payment of (i) the principal of, interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on, and Yield-Maintenance Amount (if any) payable with respect to, the Notes when and as due, whether at maturity, by acceleration, upon one or more dates on which repayment or prepayment is required, or otherwise, and (ii) all other monetary obligations, including fees, costs, expenses, and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (w) of the Issuer and the Company to one or more of the Noteholders under the Note Purchase Agreement, (x) of the Company under the Parent Guaranty, (y) of the Subsidiary Guarantors under the Subsidiary Guaranty, and (z) of the Issuer and of the other Credit Parties under any Transaction Documents to which the Issuer or such other Credit Parties are or are to be parties. The term Subordinated Debt shall mean any and all Indebtedness, obligations and liabilities that are or were at any time owed by any Subordinated Creditor to any other Subordinated Creditor (including all interest accrued or to accrue thereon up to the date of such full payment thereof) of every kind and nature whatsoever, whether represented by negotiable instruments or other writings, whether direct or indirect, absolute or contingent, due or not due, secured or unsecured, original, renewed, modified or extended, now in existence or hereafter incurred, originally contracted with the Subordinated Creditor or with another Person, and whether contracted alone or jointly and/or severally with another or others."
"(a) Each holder of Subordinated Debt hereby irrevocably authorizes the Noteholders and irrevocably constitutes and appoints the Noteholders as its attorney in fact with full power (coupled with an interest, and with power of substitution) in the name, place and stead of such holder of Subordinated Debt and whether or not a default exists with respect to the Subordinated Debt, to file proofs of claim for the full, amount of the Subordinated Debt held by it against any obligor in respect thereof or such obligors property in any statutory or non-statutory proceeding affecting such obligor or the Subordinated Debt or any other proceeding and to vote the full amount of the Subordinated Debt (i) for or against any proposal or resolution; (ii) for a trustee or trustees or for a committee of creditors; or (iii) for the acceptance or rejection of any proposed arrangement, plan of reorganization, composition, settlement or extension and in connection with any such proceeding."
"NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES."
"e. Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer."
"i. Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred."
"(d) Ownership of Excess Shares of Capital Stock. As of the date hereof and after giving effect to the transaction contemplated hereby, such Purchaser, together with its subsidiaries and affiliates, does not own directly or indirectly more than 9.8% of the issued and outstanding capital stock of the Company. Purchaser expressly acknowledges that the provisions of the Companys Articles of Incorporation, as amended or supplemented (the Charter), contain limitations on the Purchasers ownership of the Companys capital stock, which, among other things, prohibit the direct or indirect ownership by Purchaser (together with its subsidiaries and affiliates) of more than 9.8% of the Companys outstanding capital stock and, in the event the shares of capital stock acquired by Purchaser pursuant to this Agreement or otherwise exceed such limits, give the Company certain repurchase rights on the terms set forth in the Companys Charter and result in the conversion of certain shares of capital stock held by the Purchaser into excess stock which will be held for the benefit of a charitable beneficiary on the terms set forth in the Companys Charter."
"(d) As of the date hereof, the authorized capital stock of the Company consists of 38,500,000 shares of Common Stock, par value $0.001 per share (the Common Stock), 4,450,000 shares of Senior Common Stock, par value $0.001 per share (the Senior Common Stock), 2,600,000 shares of Series A Cumulative Redeemable Preferred Stock (the Series A Preferred Stock), 2,750,000 shares of Series B Cumulative Redeemable Preferred Stock (the Series B Preferred Stock) and 1,700,000 shares of Series C Cumulative Redeemable Preferred Stock (the Series C Preferred Stock, together with the Series A Preferred Stock and the Series B Preferred Stock, the Preferred Stock, and, collectively, the Capital Stock), of which 22,613,352 shares of Common Stock, 959,552 shares of Senior Common Stock, 1,000,000 shares of the Series A Preferred Stock, 1,264,000 shares of Series B Preferred Stock and 1,540,000 shares of Series C Preferred Stock are issued and outstanding and 15,886,648 shares of Common Stock, 1,600,000 shares of Series A Preferred Stock, 1,486,000 shares of Series B Preferred Stock, 160,000 shares of Series C Preferred Stock and 3,490,448 shares of Senior Common Stock are authorized and unissued (without giving effect to any Securities issued or to be issued as contemplated by this Agreement or any reclassification of any shares of Common Stock into Shares of Series D Preferred Stock in connection with the transaction contemplated by this Agreement). As of the Closing Date (after giving effect to the filing and effectiveness of the Articles Supplementary as contemplated by Section8 hereof), the authorized Capital Stock of the Company will consist of 32,500,000 shares of Common Stock, 4,450,000 shares of Senior Common Stock, 2,600,000 shares of Series A Preferred Stock, 2,750,000 shares of Series B Preferred Stock, 1,700,000 shares of Series C Preferred Stock and 6,000,000 shares of Series D Preferred Stock, of which 22,613,352 shares of Common Stock, 959,552 shares of Senior Common Stock, 1,000,000 shares of Series A Preferred Stock, 1,264,000 shares of Series B Preferred Stock, 1,540,000 shares of Series C Preferred Stock and 1,043,725 shares of Series D Preferred Stock will be issued and outstanding and 9,886,648 shares of Common Stock, 3,490,448 shares of Senior Common Stock, 1,600,000 shares of Series A Preferred Stock, 1,486,000 shares of Series B Preferred Stock, 160,000 shares of Series C Preferred Stock and 4,800,000 shares of Series D Preferred Stock will be authorized and unissued. The issued and outstanding shares of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares have been duly authorized, and when issued in accordance with the terms of the Charter (after giving effect to the filing and effectiveness of the Articles Supplementary as contemplated by Section8 hereof) and delivered as contemplated hereby, will be validly issued, fully paid and non-assessable; the Company has applied for approval for the listing of the Series D Preferred Stock on the NASDAQ Global Select Market and will use its best efforts to effect such listing within the time period specified in the Prospectus; the Senior Common Stock, the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock of the Company conform to all statements relating thereto contained in the Prospectus; and the issuance of the Securities is not subject to preemptive or other similar rights."
(b) It has been duly authorized to act as investment adviser on behalf of each Client on whose behalf it is signing this Agreement (as identified under the name of such Investment Adviser on Schedule B hereto) and has the sole authority to make the investment decision to purchase Securities hereunder on behalf of such Client. An investment in the Series D Preferred Stock is a suitable investment for each Client.
"(d) This Agreement has been duly authorized, executed and delivered by it and, assuming it has been duly authorized, executed and delivered by the Company, constitutes a legal, valid and binding agreement of such Investment Adviser, enforceable against it in accordance with its terms except as may be limited by the Enforceability Exceptions."
"8\. Covenants. The Company hereby covenants and agrees that (i)subject to all Purchasers consummating the purchase of the Securities at the Closing, the Company will use the proceeds of the offering contemplated hereby as set forth under the caption Use of Proceeds in the Prospectus Supplement and (ii)prior to the Closing, the Company will file articles supplementary to reflect the reclassification and designation of 6,000,000 shares of Common Stock into shares of Series D Preferred Stock (the Articles Supplementary) with the State Department of Assessments and Taxation of Maryland, and will cause the Articles Supplementary to become effective prior to the Closing."
"14.Binding Effect. Except to the extent set forth and amended expressly herein, each of the Parties hereto acknowledges and agrees that all terms and provisions, covenants and conditions of the Purchase Agreement and all documents executed in conjunction therewith shall be and remain in full force and effect. Further, each of the Parties hereto acknowledges and agrees that the Purchase Agreement as amended hereby, shall constitute its legal, valid, and biding obligation, in each case, enforceable in accordance with its terms."
"WHEREAS, GSS began marketing a Private Placement Memorandum (PPM) and form of Unit Purchase Agreement (the Unit Purchase Agreement) in October 2016 in connection with the 2016 Offering, for gross proceeds up to $6,000,000 dollars in purchase of a Unit (Units), with each Unit being defined as one (1) share of common stock and one (1) warrant at a price of $0.40 per Unit (the Unit Price) with each warrant having an exercise price of $0.55 (the Exercise Price) with a term of five (5) years."
"section 467 loan, the amortizing section 467 loan balance and the amount of interest in each rental period that the Lessor is considered to pay the Lessee on any such loan. In no event shall any section 467 loan, section 467 interest or allocated Rent be separately payable (including upon any termination of a Lease, and regardless of whether or not Termination Value is payable in connection with such termination), it being agreed and understood that these items represent characterizations for federal income tax purposes only. The Initial Term and Rent with respect to each item of Equipment shall commence on, and Lessee will be obligated to pay Rent from, the Rental Commencement Date. For purposes of this Agreement, the term Rent shall mean and include all amounts payable by Lessee to Lessor for the lease of the Equipment. As used in this Agreement, the term Lease Term means the Initial Term plus any Renewal Terms (as defined in Section15). All Rent payable under each Lease shall be paid to the account of Lessor in U.S. dollar same day funds to the account of the Lessor at Wells Fargo Bank, N.A., 420 Montgomery Street, San Francisco, CA 94104, Account # [REDACTED], ABA Routing # [REDACTED], Swift # [REDACTED]. Lessee shall deliver to each counterparty to any Assigned Agreement (as defined in the Lessee Security Agreement) pursuant to which the Lessee is entitled to receive any payments for the use or operation of the Walmart Equipment or for the energy generated thereby an irrevocable payment instruction executed by the Lessor and acknowledged by the Lessee, directing such counterparty to make all payments required to be made by such counterparty pursuant to such Assigned Agreement to the account of the Lessee at M&T Bank, 327 Great Oaks, Blvd, Albany, NY 12203, Account #[REDACTED], ABA # [REDACTED], Swift # [REDACTED] (or such other account as Lessor shall notify to Lessee in writing)."
"3. LATE CHARGES. If any Rent or other amount due hereunder is not paid within ten (10)days after the due date thereof, Lessor shall have the right to receive and collect, and Lessee agrees to pay, in addition to such unpaid Rent or other amount due hereunder, an amount equal to 1.5% of such unpaid Rent or other amount due hereunder for each month or part thereof that such Rent or other amount due hereunder remains unpaid."
"9. TITLE. (a)Lessor and Lessee agree that the Equipment is and at all times shall remain the sole and exclusive personal property of Lessor (subject to Section25), and Lessee covenants that it will at all times treat the Equipment as such and that no part of the Equipment shall be considered or treated as a fixture. No right, title or interest in the Equipment shall pass to Lessee other than the right to maintain possession and use of the Equipment for the Lease Term, conditioned upon Lessees compliance with the terms and conditions of this Agreement. If requested by Lessor, Lessee shall affix to or place on the Equipment, at Lessors expense, plates or markings indicating Lessors ownership."
"(c) Lessee covenants that it has not, and will not at any time from such delivery through the term of this Agreement, take any action or omit to take any action (whether or not the same is permitted or required hereunder) that is inconsistent with the tax assumptions at the start of this section, that could contribute to loss by Lessor of all or any part of the Tax Benefits or that could require the Lessor to report Rent as income ahead of the periods to which the Rent is allocated in the applicable Rent schedule. Lessee covenants that it will include in income interest on any section 467 loan as it accrues in accordance with the applicable Lease schedule. Lessee covenants that it will provide Lessor promptly upon request any information that Lessor requires in connection with claiming any Tax Benefits and responding to questions from the Internal Revenue Service."
"(c) Upon payment in full to Lessor of the amounts set forth in Section19(b)(iii), from the Lessee and/or as a result of the application of amounts on deposit from the Lessee, the Lease shall terminate (except as set forth in Section22) solely with respect to the Equipment (or any item thereof) for which such payment is received by Lessor."
"29. ANTI-MONEY LAUNDERING; INTERNATIONAL TRADE LAW COMPLIANCE. Lessee represents and warrants to Lessor, as of the date of this Agreement, the date of each advance of proceeds pursuant to this Agreement, the date of any renewal, extension or modification of this Agreement or any Lease, and at all times until this Agreement and each Lease has been terminated and all amounts thereunder have been indefeasibly paid in full, that: (a)no Covered Entity (i)is a Sanctioned Person; (ii)has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii)does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b)the proceeds of any Lease will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c)the funds used to repay any Lease are not derived"
"32. FINANCE LEASE STATUS. Lessee agrees that if Article2A-Leases of the Uniform Commercial Code of the State of New York (the Uniform Commercial Code or UCC) applies to this Agreement and any Lease, this Agreement and each such Lease shall be considered a Finance Lease as that term is defined in Article2A. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY SECTIONS 508-522 OF ARTICLE2A OF THE UNIFORMCOMMERCIAL CODE."
"representative of the Parties hereto. Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Lessors failure at any time to require strict performance by Lessee or any of the provisions hereof shall not waive or diminish Lessors right thereafter to demand strict compliance therewith or with any other provision."
"The Initial Term of this Lease shall commence upon the Acceptance Date as indicated on the Certificate of Acceptance (Lease Commencement Date) and, unless earlier terminated pursuant to the terms of the Master Lease Agreement, shall continue until expiration of the number of months specified above after the Rental Commencement Date specified above. Rent shall begin accruing on the Rental Commencement Date and shall be due and payable, along with applicable taxes, in advance each month during the Initial Term on the dates and in the amounts specified for such date on Attachment #2."
"(e) Litigation. As of the date hereof, there is no action, suit, claim, litigation, arbitration or proceeding of any nature pending, or to the knowledge of the Company Holder, threatened in writing, against the Company Holder or his, her or its properties (tangible or intangible) (or, if and to the extent that the Company Holder is an entity, any of the Company Holders officers or directors (in their capacities as such)), in each case that relates in any way to this Agreement, the Merger Agreement, any other Related Agreements to which the Company Holder is a party or any of the transactions contemplated hereby or thereby. To the knowledge of the Company Holder and as of the date hereof, there is no investigation or other proceeding pending or threatened, against the Company Holder or any of his, her or its properties (tangible or intangible) (or, if and to the extent that the Company Holder is an entity, any of the Company Holders officers or directors (in their capacities as such)) by or before any Governmental Authority, in each case that relates in any way to this Agreement, the Merger Agreement, any other Related Agreements to which the Company Holder is a party or any of the transactions contemplated hereby or thereby."
"(c) Compliance. Prior to the Termination Date, the Company Holder shall not knowingly take any action that would (i)make any representation or warranty of such Company Holder contained herein untrue or incorrect or (ii)reasonably be expected to have the effect of impairing the ability of the Company Holder to perform his, her or its obligations under this Agreement or any of the Related Agreements or preventing or materially delaying the consummation of any of the transactions contemplated by the Merger Agreement, this Agreement, any Related Agreement or the Written Consent."
"(b) Releasor hereby irrevocably and unconditionally releases the Releasees from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages or causes of action, suits, rights, demands, costs, losses, debts and expenses (including attorneys fees and costs incurred) of any nature whatsoever, known or unknown, suspected or unsuspected, that Releasor may have had in the past, may now have or may have in the future relating to the Releasors relationship with the Company (collectively, Claims); provided that the foregoing release shall not cover Claims arising from rights of Releasor under or to: (i)any unpaid wages accrued in the ordinary course of business of the Company; (ii)any indemnification or other protections owing to Releasor under the Companys certificate of incorporation or bylaws or equivalent charter documents or, in the case of directors or officers, any indemnification agreement between the Company and such director or officer or under any directors and officers liability insurance policy maintained by the Company; (iii)under the Merger Agreement or under the Related Agreements; (iv)any claim which cannot be waived as a matter of law; or (v)any claim (unrelated to any equity holdings in the Company) held by a portfolio company of any private equity or venture capital fund that is affiliated with a Company Holder or any other Affiliate of such Company Holder (any of the foregoing Claims described in clauses (i)through (v), Excluded Claims). Nothing contained in this Agreement, including Sections 5 and 6, limits Releasors ability to file a charge or complaint with any federal, state or local governmental agency or commission (a Government Agency). In addition, nothing contained in this Agreement limits Releasors ability to communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including Releasors ability to provide documents or other information, without notice to the Company, nor does anything contained in this Agreement apply to truthful testimony in litigation. If Releasor files any charge or complaint with any Government Agency and if the Government Agency pursues any claim on Releasors behalf, or if any other third party pursues any claim on Releasors behalf, Releasor waives any right to monetary or other individualized relief (either individually, or as part of any collective or class action); provided that nothing in this Agreement limits any right Releasor may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission."
"(k) Other Remedies. Except as otherwise set forth herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. Without prejudice to any remedies at law, the parties shall be entitled to specific performance in the event of a breach or threatened breach of this Agreement. Without prejudice to any remedies at law, the parties shall be entitled to specific performance in the event of a breach or threatened breach of this Agreement."
"The Parties are also parties to that certain Option Agreement dated April 25, 2008, as amended as of May 1, 2012, pursuant to which Walmart has the option to acquire FirstSight Vision Services, Inc., a California corporation and a Knox-Keene vision care health plan doing business in California (FS) (such agreement, the Option Agreement)."
"F. Licensure and Accreditation. Subject to Regulatory Uncertainty, Manager shall with respect to all applicable state and local licenses, registrations and permits, accreditations, and all certifications required of or beneficial to the operation of the Centers during the Term (collectively Licenses): (i) identify in good faith the Party or Parties, as applicable, required to obtain and hold the Licenses; and (ii) obtain and hold the Licenses that must be obtained and held by Manager as provider of the Services. Manager shall maintain documentation of its communications with regulators for at least five years from date of creation and, subject to any reasonable and valid assertions of confidentiality, make such materials available to Walmart upon request. Subject to Regulatory Uncertainty, Walmart shall obtain and hold the Licenses that must be obtained and held by Walmart as owner or seller of the Centers. Manager shall assist Walmart to obtain, complete and submit applicable applications, forms and other materials necessary for Walmart to obtain and hold the Licenses that must be obtained and held by Walmart. The Parties will exercise commercially reasonable efforts to cooperate in their efforts to comply with applicable licensing rules and regulations. Upon request, each Party shall provide the other Party with all information and perform all actions necessary or"
"G. Billing and Collection. During the Term, Walmart shall grant to Manager an exclusive special power of attorney and appoint Manager as Walmarts exclusive true and lawful agent and attorney-in-fact (which will be deemed revoked on the last day of the Term), and Manager accepts such special power of attorney and appointment, subject to the terms and conditions set forth in the Special Power of Attorney, attached as Exhibit 1. On the Effective Date, Walmart shall execute and deliver to Manager the Special Power of Attorney. Subject to review and approval by legal counsel or other personnel, determined at Walmarts sole discretion, Walmart will execute and deliver to Manager additional powers of attorney requested by Manager and necessary for Manager to manage and operate the Centers subject to the terms and conditions of this Agreement. Upon the request by Manager, Walmart will confirm to third parties that the Special Power of Attorney has not been revoked."
"C. Management and Operation. The Parties have negotiated a division of responsibilities that is reflected in this Agreement and in the Services to be provided by Manager. Those items, services and responsibilities not included with the Services are and remain the responsibility of Walmart. Manager shall provide the Centers with the services and the Manager Personnel at Managers sole expense (the Services), which are as follows:"
"10. Unless prohibited under applicable law, notify Walmart immediately of any lawsuits or actions, including without limitation governmental audit requests, subpoenas, civil investigative demands, document requests from government program contractors, or similar requests by applicable federal and state authorities, which may include, but are not limited to, the Office of Inspector General for the U.S. Department of Health and Human Services, State Attorneys General, and U.S. Attorneys, or any known threat thereof, that become known to Manager that could reasonably be expected to have an adverse effect on the operation or business of the Centers;"
"Notwithstanding the foregoing, and consistent with the terms of Section 15 of the lease attached to this Agreement as Schedule G. that portion of the E&F that consists of optical displays will, upon the expiration or earlier termination of such lease, be deemed abandoned by Manager and disposed of by Walmart at its sole cost and expense, unless Manager, by notice to Walmart sent at least thirty days prior to the expiration or earlier termination of such lease, affirmatively directs Walmart to return such items to the location designated by Manager, in accordance with the terms of the lease attached to this Agreement as Schedule G. Walmart is under no obligation to purchase or lease any E&F from Manager."
"3. All records and files of the Centers that are not considered PHI for Goods, in whatever form or format, except as addressed in Sections XI, below and in this Section IX (the Records),shall remain the property of Walmart, provided, however, that to the extent readily identifiable and segregable, Manager shall be permitted to redact such Confidential Information or PHI from the Records."
"all records relating to the provision by Manager of Third Party Items before the Third Party Transition Date and contact lenses before the Contact Lens Transition Date, and that Manager will cooperate with Walmart with respect to requests by customers to transfer such records to Walmart locations in a manner consistent with applicable law."
"$10,000,000 each claim and in the annual aggregate 2. All insurance policies must have such deductibles and cover such risks of loss as customarily maintained by persons engaged in similar businesses as Manager. With respect to policies (c), (d), (e), and (f) referenced above, Walmart shall be included as an additional insured as its interest may appear. Manager shall not allow coverage to lapse for any reason whatsoever without providing prior written notice of at least fifteen days to Walmart. Upon execution of this Agreement, at each annual renewal of insurance or upon request from Walmart, Manager shall deliver such certificates of insurance as may be necessary to show compliance with the insurance requirements of this Agreement. If Manager fails to maintain the insurance required by this Agreement and does not cure this deficiency within ten days after receipt of notice from Walmart, Walmart may, but is not be obligated to, procure such insurance and to deduct from amounts due to Manager for Services rendered any premium costs and other reasonable expenses incurred by Walmart in procuring any such insurance."
"1. All Confidential Information transmitted by the Disclosing Party to the Receiving Party is the sole property of the Disclosing Party. Except as otherwise provided in this Agreement, such information and data is to be used only in providing the Services, and no rights are given to the Receiving Party under this Agreement to use the Disclosing Partys information and data in any other way, individually, collectively, in the aggregate, nor in statistical summaries, nor to divulge or make public such information and data in any way without the express written consent of the Disclosing Party."
"A. Severability. Each provision of this Agreement is severable. If any term or provision hereof is determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision will be severed from this Agreement and will not affect the validity of the remainder of this Agreement."
"Walmart will pay for all public utilities furnished to the Centers and shall reasonably cool, heat, and light and provide water and sanitary sewerage services to the building in which the Centers are located. Walmart is not liable for any interruption whatsoever to the public utilities, the lighting, the cooling, the heating, the water, or the sanitary sewerage services if any of the preceding are interrupted: | |"
"7881 | N/A | 1305020 | Other Receivable | | (81,215) | | Calculated due to/from NVI ---|---|---|---|---|---|---|--- 7881 | N/A | 1305011 | Optical Receivable Customer | | (22,487) | Managed Care AR factored to NVI | Entry not applicable until contracts transferred to Walmart Stores | 75 | 6109001 | Other Expense | 899 | | Managed Care AR Factor Fee (est 4%) | Entry not applicable until contracts transferred to Walmart Stores | 75 | 3804046 | Management Fee | 67,135 | | Management Fee Paid to NVI ( of % Sales) | As per separate worksheet calculation Stores | 75 | 3804040 | Other General and Administrative Expense | 15,667 | | incentive Bonus related to Cogs Management | As per separate worksheet calculation 1"
"Lessee has exercised its option to lease from Lessor the optometric and other equipment, fixtures (including but not limited to optical display fixtures), assets and personal property specified on Exhibit A attached hereto and incorporated by reference herein (herein, with all present and future attachments, accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as the FF&E1. ---|--- SUMMARY OF LEASE TERMS"
"13. INSURANCE: Lessee agrees to procure and maintain during the Term insurance policies covering the depreciated value of the FF&E naming Lessor as an additional insured and to immediately furnish evidence thereof reasonably satisfactory to Lessor. Lessee will deliver promptly to Lessor, upon request, certificates or policies satisfactory to Lessor evidencing such insurance. Each policy will provide that Lessors interest therein will not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and will contain insurers agreement to give Lessor thirty (30) days prior written notice before cancellation for any reason, including nonpayment, or any material change in the policy will be effective as to Lessor, whether such cancellation or change is at the direction or the insurer. Lessee may provide self-insurance in lieu of the insurance required in this Paragraph 13, whether by the establishment of an insurance fund or reserve to be held and applied to make good losses from casualties, or otherwise, which conforms to the practice of large corporations maintaining systems of self-insurance. Upon request, Lessee will deliver promptly to Lessor evidence satisfactory to Lessor of such self-insurance."
"15. LESSORS TITLE; RETURN OF FF&E UPON EXPIRATION OR TERMINATION OF LEASE; IDENTIFICATION OF FF&E: Title to the FF&E will at all times remain in Lessors name and Lessee will at all times, at its own cost and expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the FF&E free and clear from all such claims, liens and processes resulting from Lessees use or operation of the FF&E. Lessee agrees not to alter or modify the FF&E without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or earlier termination of this Lease, as governed by Paragraph 2 above, Lessee, at Lessors sole expense, and using a delivery or shipping method selected by Lessor and insured at Lessors sole expense, shall return the FF&E unencumbered to Lessor at a place or places reasonably acceptable to Lessor (Delivery Location), and in the same condition as when received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Notwithstanding the foregoing, that portion of the FF&E which consists of optical displays will, upon the expiration or earlier termination of this Lease, be deemed abandoned by Lessor and disposed of by Lessee at its sole cost and expense, unless Lessor, by notice to Lessee sent at least thirty (30) days prior to the expiration or earlier termination of this Lease, affirmatively directs Lessee to return such items to the Delivery Location pursuant to the provisions of the preceding sentence."
"16. POSSESSION AND LOCATION OF FF&E; RIGHT OF INSPECTION: The FF&E is and will remain personal property and not become part of any real property regardless of the manner of affixation and will be kept by Lessee at the locations indicated on Exhibit A. hereto, and will not be removed from such locations, except as set forth in this Lease, without the prior written consent of Lessor. Lessor shall have the right to inspect the FF&E at Lessees premises during normal operating hours of Lessee following at least twenty-four hours prior written notice, from time to time, as Lessor may require, and Lessee shall permit Lessor such right of entry and make all commercially reasonable accommodations for such right."
"E. In the event Business Associate receives a notification from or on behalf of HHS regarding a compliance review, an audit, or an investigation or inquiry of any kind pertaining to the Services provided under the Agreement or Covered Entity, it will notify Covered Entity no more than 5-days following its receipt of that notice."
"A. Information Security Program. Manager agrees and represents that it currently maintains information protection practices and procedures (Information Security Program)that are fully consistent with industry standards and comply with applicable Privacy Laws as a means to preserve the confidentiality and security of Walmart Information in its possession or control or of which it has the ability to access or impact and to protect Walmart systems which it accesses or contacts. Walmart Informationincludes the following, regardless of the media in which it is contained, that may be disclosed to or accessed by Manager in connection with or incidental to the performance of Services for or on behalf of Walmart pursuant to a certain Management and Services Agreement dated April 1, 2011, by and between Walmart and Manager (the Agreement):"
"Appropriate internal practices including, but not limited to, encryption of data in transit or at rest; using appropriate firewall and antivirus software; maintaining these countermeasures, operating systems and other applications with up-to-date virus definitions and security patches so as to avoid any adverse impact to Walmarts systems or Information; appropriate logging and alerts to monitor access controls and to assure data integrity and confidentiality; installing and operating security mechanisms in the manner intended sufficient to minimize the risk that Walmart business operations are disrupted; and permitting only authorized users access to systems and applications, such as Walmarts Retail Link (where applicable); and implement appropriate procedures designed to prevent unauthorized access to Walmarts systems via Managers networks and access codes. |"
" | (g) | Reimbursement of Attorneys Fees. The Company will reimburse Sirgo for his reasonable attorneys fees incurred in connection with the preparation and negotiation of this Agreement, up to a maximum of $40,000. Such amount will be paid within thirty (30)days of Sirgos submission of acceptable documentation of such fees following the Signing Date, but in no event later than August31, 2017. ---|---|--- "
" | (h) | Acknowledgement and Waiver. Sirgo acknowledges that the compensation and benefits available to him under this Agreement are in lieu of any compensation and benefits he would be eligible to receive under the Employment Agreement upon the termination of his employment. Accordingly, except for the compensation and benefits provided for under this Agreement upon the termination of Sirgos employment, Sirgo hereby waives any severance, separation or post-termination compensation available to him upon the termination of his employment as provided under the Employment Agreement. For the avoidance of doubt, however, this waiver does not include any right to the acceleration of vesting or other benefits that may be available to Sirgo under any of the Companys equity plans. For the further avoidance of doubt, the Company acknowledges and agrees that Sirgo is entitled to the compensation and benefits set forth in this Agreement, including without limitation Section2, upon the termination of his employment for any reason at any time. ---|---|--- 3\. Press Releases. Sirgo and the Company shall cooperate in preparing and shall mutually agree upon a press release and all other public announcements concerning Sirgos retirement under this Agreement."
"9\. No Disparagement. Neither the Company or the Company Released Parties, on the one hand, nor Sirgo (either directly or indirectly), on the other hand, shall make any communications, whether written, electronic, oral, or otherwise, to any other person or entity, including, but not limited to any publications and any website postings or blogs, which denigrate, defame, damage the reputation of, or otherwise cast aspersions upon each other, or their respective products, services, reputation, business and manner of doing business."
"(a) Parties Intent. The parties intend that all payments or benefits hereunder shall either qualify for an exemption from or comply with the applicable rules governing non-qualified deferred compensation under Section409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations thereunder (collectively, Section 409A) and all provisions of this Agreement shall be construed in a manner consistent with such intention. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Sirgo to incur any additional tax or interest under Section409A, the Company shall, upon the specific request of Sirgo, use its reasonable business efforts to in good faith reform such provision to be exempt from, or comply with, Code Section409A; provided, that to the maximum extent practicable, the original intent and economic benefit to Sirgo and the Company of the applicable provision shall be maintained, and the Company shall have no obligation to make any changes that could create any material additional economic cost or loss of material benefit to the Company. Should any provision of this Agreement or of the Employment Agreement be determined to not be in compliance with Section409A, or should Sirgo become liable for any excise tax, penalty or interest under Section409A, the Company shall pay all such taxes, penalties and interest, including an additional amount to cover any additional taxes on such payments."
"(b) The Covered Payments shall be reduced in a manner that maximizes Sirgos economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero."
"HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS CONTAINED HEREIN, SIRGO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST THE COMPANY. SIMILARLY, HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE BENEFITS CONTAINED HEREIN, THE COMPANY FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS IT AND ITS AFFILIATES HAVE OR MIGHT HAVE AGAINST THE SIRGO RELEASED PARTIES."
"This Stock Redemption and Mutual Release Agreement (this Agreement) is effective as of the close of escrow between Corix Bioscience, Inc., a Wyoming corporation, formerly known as American Housing Income Trust, Inc., a Maryland corporation (hereinafter, Corix), and Raymond Chuck-Sau Yule and Winnie Chang Yule (hereinafter, the Yules), and the Related Parties, as defined below. Corix and the Yules are collectively referred to herein as the Parties or individually as a Party."
"3.2 Authorization. Sean Zarinegar, on behalf of Corix, has the requisite legal capacity to execute, deliver, and perform this Agreement and to consummate any related transactions on behalf of Corix. Corix has duly executed and delivered this Agreement. This Agreement when executed and delivered by Corix will be a legal, valid, and binding obligation of Corix."
"(c)Death or Disability. If your employment is terminated because of your death, the termination will be effective immediately. If the Company determines in good faith that your Disability has occurred, it may give you a written notice of termination. If within 30 days of such notice of termination you do not return to full-time performance of your responsibilities, your employment will terminate. If you return to full-time performance in that 30 day period, the notice of termination will be cancelled for all purposes of this Agreement. Notwithstanding the foregoing, if you die or become Disabled after you provide a valid notice of termination with Good Reason or the Company provides a notice of termination without Cause, your termination will be treated as a termination by the Company not for Cause, effective as of the date of termination of your employment due to death or Disability pursuant to this section."
"2.Upon a termination of your employment prior to the end of the Term by the Company for Cause or by you without Good Reason, you will only receive the Accrued Obligations and the Other Benefits; provided, however, that in the event of a termination by you without Good Reason, you shall also be entitled to the Prior Year Bonus."
"2.Upon a termination of your employment prior to the end of the Term by the Company for Cause or by you without Good Reason, you will only receive the Accrued Obligations and the Other Benefits; provided, however, that in the event of a termination by you without Good Reason, you shall also be entitled to the Prior Year Bonus."
"(h)No Duplication of Benefits. Any termination payments made and benefits provided under this Agreement to you shall be in lieu of any other severance payments or benefits for which you may be eligible under any of the plans, policies or programs of Block and/or any Affiliate or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation. In the event any plan or grant provides for better treatment as to equity on a termination of employment than that provided herein, such better provision shall apply."
"(b)Release required for any Severance Benefits. The Companys obligation to make any payment of any amounts or provide any benefits to you under Section 4(d) or 4(e) hereof (other than the Accrued Obligations and the Other Benefits) is contingent upon your execution and delivery to the Company of a Release in favor of the Company and Block in the form attached as Exhibit C hereto (the Release). Such Release shall be executed and delivered (and no longer subject to revocation) within 60 days following termination; provided, however, that with respect to any payment subject to the Release that is (a) paid in installments that would otherwise commence prior to the 60th day after the date of termination, the first payment of any such payment shall be made on the 60th day after the date of termination, and will include payment of any amounts that were otherwise due prior thereto, or (b) paid in a lump sum that would otherwise be paid prior to the 60th day after the date of termination, such payment shall be made on the 60th day after the date of termination."
"2.During the Term and for two years thereafter, the Company agrees that none of the Block Companies nor its officers or directors shall, with intent to damage, disparage or encourage or induce others to disparage you; provided that, the foregoing shall not apply to: (i) truthful statements to the extent, but only to the extent (A) necessary with respect to any litigation, arbitration or mediation involving this Agreement, in the forum in which such litigation, arbitration or mediation properly takes place or (B) required by law, legal process or by any court, arbitrator or mediator or legislative body (including the committee thereof) with apparent jurisdiction over the Block Company or the applicable officer or director; (ii) normal competitive statements during any period after the termination of your employment, or (iii) rebuttals of any statements made by you. For purposes of this Section 7(l)(2), the term disparage includes, without limitation, comments or statements to the press or to any individual or entity with whom you have a business relationship, or any public statement, that in each case is intended to, or can be reasonably expected to, damage you in connection with your then current or future employment or business relationships."
"(p)Section 409A. It is intended that this Agreement will comply with, or be exempt from, Section 409A of the Code and any regulations and guidelines promulgated thereunder (collectively, Section 409A), to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary in this Agreement, if you are deemed on the date of your separation from service (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a specified employee (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered non-qualified deferred compensation under Section 409A payable on account of a separation from service that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any applicable exceptions to such"
"(q)Section 280G Best-net Approach. In the event that a Change in Control or other transaction occurs and it is determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Block or an acquirer of any of the Block Companies, to or for your benefit (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section) (a Payment) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local excise tax law, or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax), then the Company shall pay or provide to you the greatest of the following, whichever gives you the greatest net after-tax amount (after taking into account federal, state, local and payroll taxes at your actual marginal rates and the Excise Tax): (1) all of the Payments or (2) Payments not in excess of the greatest amount of Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code (the Safe Harbor Amount). The Payments to be reduced hereunder, if any, will be determined in a manner which"
"(r)Arbitration. The parties hereto may attempt to resolve any dispute hereunder informally via mediation or other means. Otherwise, except where seeking injunctive relief compelling specific performance as provided in Section 7(e), any controversy or claim arising out of or relating to this Agreement, or any breach thereof, will be adjudicated only by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon such award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration will be held in Kansas City, Missouri, or such other place as may be agreed upon at the time by the parties to the arbitration. Each party shall bear its own fees and expenses in connection with any such arbitration; provided that, in the event you prevail on any material issue in such dispute, the arbitrator(s) shall, in their award, require the Company and Block to pay the costs of arbitration, which will include your reasonable attorneys fees and expenses, as well as the arbitrators fees and expenses, to you."
"1.9 No Shareholder Privileges. Neither Participant nor any person claiming under or through him shall be, or have any of the rights or privileges of, a shareholder of H&R Block (including the right to vote shares or to receive dividends) with respect to any of the Common Stock issuable upon the exercise of this Stock Option, unless and until such shares of Common Stock shall have been duly issued and delivered to Participant as a result of such exercise of any vested portion of this Stock Option. No dividend equivalents shall be issued with respect to this Stock Option."
"the Missouri District Court located in Jackson County, Missouri, or in the United States District Court for the Western District of Missouri in Kansas City, Missouri. Participant agrees and submits to personal jurisdiction in either court. Participant and Company further agree that this Choice of Forum and Jurisdiction is binding on all matters related to Awards under the Plan and may not be altered or amended by any other arrangement or agreement (including an employment agreement) without the express written consent of Participant and H&R Block."
"4.6 Reservation of Rights. If at any time Company determines that qualification or registration of the Units or any shares of Common Stock subject to the Units under any federal, state or other applicable securities law, or the consent or approval of any governmental regulatory authority, is necessary or desirable as a condition of executing an Award or providing a benefit under the Plan, then such action may not be taken, in whole or in part, unless and until such qualification, registration, consent or approval shall have been effected or obtained free of any conditions Company deems unacceptable."
"Participant may be required by the Company to take specified actions in order to enable the Company to be permitted to withhold at a rate higher than the required tax withholding rates upon any distribution of shares of Common Stock, including, but not limited to, terminating any outstanding additional withholding elections in effect prior to such delivery of shares of Common Stock. Participant agrees to take any such actions as may be required by the Company. Notwithstanding any provision of this Award Agreement to the contrary, a sufficient number of Units shall be settled and paid from the Award (and the number of Units remaining subject to the Award Agreement shall be reduced), upon each respective vesting date to pay (1) the Federal Insurance Contributions Act (FICA) tax imposed under Code Sections 3101, 3121(a), and 3121(v)(2), and (2) to pay the income tax at source on wages imposed under Code Section 3401 and the corresponding withholding provisions of applicable state, local, or foreign tax laws as a result of the payment of the FICA amount, and to pay the additional income tax at source on wages attributable to the pyramiding Code Section 3401 wages and taxes; provided that, the total number of Units subject to such accelerated settlement and payment shall not exceed the number required to pay the total amount of FICA and the income tax withholding."
"4.8 Reasonableness of Restrictions, Severability and Court Modification. Participant and Company agree that the restrictions contained in this Award Agreement are reasonable, but, should any provision of this Award Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable or unreasonable in scope, the validity, legality and enforceability of the other provisions of this Award Agreement will not be affected thereby, and the provision found invalid, illegal, or otherwise unenforceable or unreasonable will be considered by Company and Participant to be amended as to scope of protection, time or geographic area (or any one of them, as the case may be) in whatever manner is considered reasonable by that court and, as so amended, will be enforced."
"2. Legal Hold. To the extent Employee has received a Preservation Notice/Legal Hold from the Legal Department, Employee shall take all necessary steps to preserve information related in any way to the Preservation Notice/Legal Hold in its original format and location and will not modify, delete or destroy such information. Employee will notify the Legal Department of the nature and location of any and all such information. "
"Employee will receive, under separate cover, information regarding the process of continuing her health insurance by making a federal COBRA continuation election, and she may elect to continue such benefits in accordance with COBRA requirements following the Termination Date. If following the Termination Date Employee elects to and does continue participation in the Bank-sponsored group medical plan under COBRA, Bank will pay premiums for such coverage on the terms and conditions set forth in the following paragraph."
"(b) Payment Upon Death. If Executive dies before the Retirement Date and provided (a) the conditions precedent described in Subsections 2.1(a) and 2.1(b) are satisfied as of Executives date of death and (b) the Executives estate executes the Release on behalf of Executive as described in Section 2.2, a lump sum cash payment shall be paid to Executives estate in the amount set forth in Section 1.1(a) as soon as administratively practicable after Executives date of death but in no event later than 75 calendar days following the end of the Executives U.S. tax year in which the date of death occurs, and in no event shall Executives estate be permitted to determine the year of payment."
"1.2 Equity Compensation. Subject to the conditions precedent described in Section 2.1, the Company will cause the entire outstanding, non-vested performance-based restricted stock unit (PRSU) grant made to Executive on March 6, 2017 to remain outstanding following the Retirement Date and such PRSUs will become vested only if, and to the extent that, the performance goals for"
"the full performance period are achieved. For purposes of this Section 1.2, the terms performance goals and performance period have the meanings ascribed to them in the award notice evidencing such PRSU grant. The shares associated with any vested stock units (less any applicable tax withholding) will be issued or delivered to Executive in accordance with the terms of the applicable award notice, the Caterpillar Inc. 2014 Long-Term Incentive Plan, and applicable law."
"If the Executive is terminated by the Company without Cause prior to the Retirement Date, the payments and benefits described in Sections 1.1 and 1.2 of this Agreement will be made as described in Article I, provided that Executive executes the Release not later than twenty-one (21) days after the date of his termination, does not revoke the Release, and otherwise complies with all requirements of this Agreement."
"2.6 Acknowledgment of Obligations. Executive acknowledges that during his employment, Executive developed and has been exposed to trade secrets or confidential information regarding the Company, including business strategies, operations, and actual and potential customers and suppliers (Confidential Information). The Company considers such Confidential Information to be valuable and proprietary. Executive agrees that after any termination or retirement date that he remains bound by the Intellectual Property Agreement that Executive signed during his employment with the Company. Executive acknowledges that Except as provided for in Section 2.4 with regard to governmental reporting, he is under a continuing obligation to keep confidential, not disclose and not use any confidential information except as specifically authorized by the Company. Executive understands that he may be required to sign an exit statement upon any separation from employment that reaffirms these obligations regarding trade secret and confidential information."
"This Agreements general release provisions exclude: claims arising after Executive signs this Agreement; claims for breach of this Agreement and any claims that cannot be waived under law, including the right to receive payment for accrued and unused vacation pay. In addition, this Agreements general release provisions exclude claims for defense and indemnification as provided for in this Agreement and claims for coverage under Employers Directors and Officers insurance policies applicable to Executives duties arising from employment with the Company. Neither shall the release provisions above nor anything else in this Agreement limit Executives rights to: (i) obtain any vested and nonforfeitable benefits under any retirement plan; (ii) preclude him from exercising any conversion or continuation coverage rights he may have under any welfare benefit plan; or to (iii) file a charge with any administrative agency (such as the U.S. Equal Employment Opportunity Commission or a state fair employment practices agency), provide information to an agency, or otherwise participate in an agency investigation or other administrative proceeding. However, Executive is relinquishing all rights to receive any money or other individual relief based on any agency or judicial decision, including class or collective action rulings, except that Executive may receive money properly awarded by the U.S. Securities and Exchange Commission as a securities whistleblower incentive. | ---|--- 4."
"(g) Theranostics Litigation. Executive is aware that prior to the Termination Date, he was named as a party to that certain litigation entitled, John G. Hartwell et al v. Avant Diagnostics, Inc., et. al., Case No. 432180-V (the Litigation), filed in the Circuit Court for Montgomery County, Maryland (the Court). Executive understands and agrees that after the Termination Date, the Company shall take commercially reasonable efforts to settle the Litigation with the appropriate parties and have such Litigation dismissed from the Court as soon as reasonable practicable. To the plaintiffs re- commence the Litigation in Court, the Company agrees and acknowledges that it will indemnify Executive to the fullest extent permitted by law and pursuant to the Surviving Provisions (as defined below) in connection with the Litigation."
"9\. Section 409A. It is intended that each installment of the payments provided hereunder constitute separate payments for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Code Section 409A provided under Treasury Regulation Section 1.409A-1(b)(4) (as a short-term deferral). To the extent that any provision of this Agreement is ambiguous as to its compliance with Code Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Code Section 409A. To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement, or the amount of in- kind benefits to be provided, in any other calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year immediately following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit."
"11\. Non-Admissibility. Neither this Agreement nor anything in this Agreement shall be construed to be or shall be admissible in any proceeding as evidence of or an admission by the Company or the Executive of any violation of any state, federal or local laws or regulations or any rules, regulations, criteria or standards of any regulatory body. This Agreement may be introduced, however, in any proceeding to enforce the Agreement."
"Project Common Area Expenses: Consists of the maintenance and up-keep of developed perimeter Landscaping areas (generally located parallel to the public streets within the Project), security and general and administrative costs, monuments and those other costs associated with the common areas of the Project. Tenant shall initially be responsible for Project Common Area"
"Tenant shall be liable for and shall pay all taxes and assessments levied against all personal property of Tenant located in the Premises. If any taxes on Tenants personal property are levied against Landlord or Landlords property is increased by the inclusion of a value placed upon the personal property of Tenant, and if Landlord pays the taxes based upon the increased assessment, Tenant shall pay to Landlord the taxes so levied against Landlord or the proportion of the taxes resulting from the increase in the assessment."
"i. The Sublease shall be subject to, and shall incorporate by reference, all of the terms and conditions of this Lease, except those terms and conditions relating to Base Rent, Additional Rent, and any other amount due under this Lease. Subtenant shall acknowledge in the Sublease or Consent that it has reviewed and agreed to all of the terms and conditions of this Lease. Subtenant shall agree in the Sublease or Consent not to do, or fail to do, anything that would cause Tenant to violate any of its obligations under this Lease."
"11.1. | Tenants Insurance: ---|--- Beginning on the date Tenant is given access to the Premises for any purpose and continuing until the expiration of the Lease term, including extensions or holdovers thereof, Tenant shall maintain policies of insurance covering loss or damage to Tenants trade fixtures, merchandise, equipment and improvements installed by Tenant and not covered by a Tenant Improvement Allowance, and other personal property in or about the Premises, in commercially reasonable amounts relative to the value of the property insured and providing protection against any peril included within the classification Causes of Loss-Special Form (or comparable coverage), together with insurance against sprinkler damage, vandalism and malicious mischief. As an Operating Expense, Tenant shall be liable for its prorata share of any deductible amount under Landlords insurance policies required to be maintained pursuant to Section11.2 (in an amount not to exceed $10,000 per occurrence), provided that if the loss or damage results directly from the negligent act or omission of Tenant, its employees, contractors or agents, then Tenant shall be solely responsible for the payment of such deductible."
"11.3. | Waiver of Subrogation: ---|--- Landlord and Tenant hereby waive any rights each may have against the other on account of any loss or damage occasioned to Landlord or Tenant, as the case may be, or to the Premises or the Building, or any improvements thereto, or its contents, and which may arise out of or incident to the perils insured against under Sections 11.1 and 11.2, which perils occur in or about the Premises or the Building, whether due to the negligence of Landlord or Tenant or their agents, employees and/or invitees to the extent of such insurance (including deductibles). The parties shall obtain from their respective insurance companies insuring the property a waiver of any right of subrogation which said insurance companies may have against Landlord or Tenant, as the case may be."
"bankruptcy; the appointment of a trustee or receiver to take possession of substantially all of Tenants assets or of Tenants interest in this Lease, if possession is not restored to Tenant within sixty (60)days; the attachment, execution or other judicial seizure of substantially all of Tenants assets located at the Premises or of Tenants interests in this Lease where the seizure is not discharged within sixty (60)days; or Tenants convening of a meeting of its creditors for the purpose of effecting a moratorium upon or consolidation of its debts."
"20.6. | Waiver of Trial by Jury: ---|--- The respective parties hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenants use or occupancy of the Premises, or any claim of injury or damage, or the enforcement of any remedy under any statute, emergency or otherwise."
"20.15.Attorneys | Fees: ---|--- If either Landlord or Tenant commences or engages in, or threatens to commence or engage in, any action or litigation against the other party arising out of or in connection with the Lease, the Premises, the Building, or the Project, including but not limited to, any action for recovery of any payment owed by either party under the Lease, or to recover possession of the Premises, or for damages for breach of the Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys fees and other costs incurred in connection with the action and in preparation for said action. This provision shall survive the termination of the Lease."
"20.17.Interest | Rate: ---|--- Any time either Landlord or Tenant is required to pay interest to the other, the following shall be the interest rate: the lesser of (i)the rate publicly announced from time to time, by the largest (as measured by deposits) state chartered bank operating in Nevada, as its Prime Rate or its Reference Rate or other similar benchmark, plus five percent (5%), or (ii)the maximum rate permitted by law."
"If by reason of a default on the part of Landlord as tenant in the performance of the terms of the provisions of the Master Lease, the Master Lease and the leasehold estate of Landlord as lessee thereunder is terminated by summary proceedings or otherwise in accordance with the terms of the Master Lease, all sublessees will attorn to Master Landlord and recognize Master Landlord as lessor; provided, however, Master Landlord agrees that so long as such sublessees are not in default, Master Landlord agrees to provide quiet enjoyment to the sublessees and to be bound by all the terms and conditions of such sublease."
"1.02 Offensive ConductNuisance: Tenants, contractors, agents and guests accessing the Project or Premises shall conform to all applicable Saws, statutes and ordinances, and no norious or offensive activities shall be carried on, upon or within the Project. Any obstruction of common access areas is hereby deemed to be a nuisance and is prohibited except for reasonable periods in connection with repairs to the driveway, parking, walkway and common access areas. Objects which create or emit loud noise, vibrations or obnorious odors shall not be located, used or placed on any portion of the Project other than temporarily for landscape, driveway, parking, walkway or building maintenance. No Tenant shall permit or cause anything to be done or kept on its Premises which may increase the rate or cause the cancellation of insurance because of the dangerous or volatile nature of such activity or substance. The Landlord shall be entitled, but shall not be obligated, to take any action to abate an unlawful nuisance, including without limitation the right to enter into a Premises or Building to exercise the abatement of the unlawful nuisance."
"3.01 Except for normal wall hangings and office decorations, Tenant shall not mark, paint, drill into, cut, string wires within, or in any way deface any part of the Building or Premises, without the prior written consent of Landlord. Upon removal of any wall decorations or installments or floor coverings by Tenant, any damage to the walls or floors shall be repaired by Tenant at Tenants sole cost and expense. Tenant shall not lay linoleum or similar floor coverings so that the same shall come into direct contact with the concrete floor of the Premises and, if linoleum or other similar floor covering is to be used, an interlining of builders deadening felt shall be first affixed to the floor with a water soluble paste or glue. The use of cement or other similar adhesive material is expressly prohibited. Floor distribution bores for electric and telephone wires must remain accessible at all times."
"Tenant shall not knowingly permit or allow any vehicles that belong to or are controlled by Tenant or Tenants employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those designated by Landlord for such activities. If Tenant permits or allows any of such prohibited activities, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord."
"Tenant shall have the right to extend the Initial Term of the Lease for the additional terms set forth in Section1.10 of the Lease (Renewal Options), if immediately prior to the expiration of the operative term this Lease shall be in full force and effect, and if written notice of Tenants intent to exercise a Renewal Option is given to Landlord not less than 9 months prior to the expiration of the then operative term, the giving of such notice by Tenant shall be effective to extend the term of the Lease for the applicable Renewal Option without the necessity for execution of any further instrument by either party. If Tenant fails to deliver written notice of its intent to exercise a Renewal Option within the proscribed time period, such Renewal Option and any succeeding Renewal Option(s) shall lapse, and there shall be no further right to extend the term of the Lease. Each Renewal Option shall be exercisable by Tenant on the condition that: (a)at the time of the exercise, and at all times prior to the commencement of such Renewal Option, Tenant shall not be in default under any provision of the Lease, and (b)Tenant has not been ten (10)or more days late in the payment of rent more than a total of three (3)times during its prior tenancy. Tenants occupancy during a Renewal Option shall be under the same covenants, agreements, terms, provisions and conditions as are contained herein for the Initial Term, except the Base Rent shall be adjusted as follows."
" | (iii) | Currently occupied by a tenant which desires to extend its existing term to the term of the extension period. ---|---|--- In determining Fair Market Rental Rate, the broker(s) shall treat the Premises as is, (shall not include any concessions granted to a tenant  including but not limited to: free rent, security deposit concessions, moving cost contributions, tenant improvement allowances, brokerage fee payment, space improvements, etc.)."
"C. Lender is the holder of 100% of the rights or has purchased the Loan and succeeded to 100% of the rights of the Landlord under the Loan Agreement, the Deed of Trust and the other documents evidenced the Loan pursuant to, (i)an Assignment of Loan Documents dated , and (ii)and Assignment of Beneficial Interest under Deed of Trust and under Assignment of Leases and Rents recorded in the Official Records of Clark County, Nevada, on as Instrument No. ."
" | 1.11 | The term Cooperative Management Area or CMA, whenever used herein, means the land area included within the Airports 60 and above day- night average decibel level noise contours, as defined in the 1992 Interim Cooperative Management Agreement between the U.S. Department of Interiors Bureau of Land Management and County, a copy of which is attached hereto as Exhibit A and incorporated herein (the CMA Agreement). Only those land uses defined in the CMA Agreement as compatible with aircraft operations will be permitted on County-owned parcels within the CMA that were acquired by County under the terms of Southern Nevada Public Land Management Act of 1998 (the SNPLMA), a copy of which is attached hereto as Exhibit B and incorporated herein. ---|---|--- "
" | 1.1.14 | The term Effective Date, whenever used herein, means the date established pursuant to Sections 1.2.6 and 1.7 below for the commencement of the distribution of Net Revenues (first, to repayment of any equity contribution and second, for distribution to County and Company as provided in Section1.7 below). All other terms and conditions of this Agreement will become effective on the Approval Date. ---|---|--- "
" | 1.1.30 | The term Total Revenue, whenever used herein, means the total amount of all rents, charges, fees and/or other income collected by Company from any use of the Commercial Facilities. Any space occupied by Company or any related entity which is not exclusively used for the necessary construction on and/or management of the Premises must be charged at a similar rental rate to that being charged for a similar type of rental property in the Las Vegas Valley. Such rental value shall be included in the Total Revenue, whether or not a cash payment is made. ---|---|--- "
" | 1.4.3.2 | Compatible Uses: The term Compatible Uses, means land uses which are appropriate given the areas exposure to aircraft overflight and noise, and the limitations on development necessary to preclude potential hazards to air navigation. Compatible Uses which may conform with the preceding definition include, but are not limited to, commercial uses such as office, warehousing, manufacturing, business, professional, and wholesale and retail, provided any occupied structure is constructed using noise attenuation construction techniques in compliance with FAA regulations as further outlined in Sections 1.4.3.3, 1.4.3.4 and 3.18 below; communication uses; transportation uses such as railroad, motor vehicle, rapid transit and street railway transportation; street and highway rights-of-way; utility rights-of- way; parking; general dispersed recreation; golf courses; and drainage facilities; ---|---|--- "
"Company covenants and agrees not to allow any vegetation to be planted or grown on the Premises which is, will be or has been grown to a height and does extend into the airspace where, upon making application of a FAA form 7460-1 if required, the FAA determines such vegetation to be an obstruction and/or hazard to air navigation pursuant to the rules and regulations of the FAA under Part 77. Should FAA determine such proposed or grown vegetation to be an obstruction and/or hazard to air navigation, the vegetation is to be removed, trimmed, and/or lowered to a height which the FAA determines not to be an obstruction and/or hazard to air navigation and until such compliance is determined by the FAA, Company not be granted a permit under Clark County Code Chapter 20 and Chapter 30, including but not limited to 20.13 and 30.48 Part B Airport Airspace Overlay District as amended; or any similar federal state, or local regulation which may hereinafter be enacted in total or in part."
" | 1.7.3 | On or before the twenty-fifth (25th)of each month, Company will submit a statement depicting Total Revenue received for the preceding month and allowable deductions for the Net Revalue calculation. A check for Countys fifty percent (50%)share of Net Revenue will be submitted with such report. ---|---|--- "
" | 1.9.2 | In connection with the Commercial Facilities, at any time and from time to time during the term of this Agreement County agrees to, upon the written request of Company, assist Company in delivering such instruments as maybe appropriate, necessary, required or desired by Company for the purpose of (a)the grant or dedication of any easement, right of way or other property right to any public entity or service corporation or for the development of the Premises, so long as such grant or dedication does not substantially impair the value of the Countys fee interest in the real property underlying the Premises, or (b)the application to any governmental authority for, or the obtaining of, approvals, consents, zoning changes, conditional uses, variances, subdivision maps or the like, in each instance for the purpose of providing adequate utility services to the Premises or of permitting Company to construct the Commercial Facilities on the Premises or make any alteration or addition to the Commercial Facilities, or (c)obtaining institutional construction and permanent financing, including such Estoppel Certificates, Subordination Agreements, and/or Non-Disturbance and Attornment Agreements, in customary form, as may be reasonably required by such Lenders. ---|---|--- "
" | 1.10.1.1 | All leasehold improvements, including but not limited to grading, fencing, paving, lighting, roadways, parking lots, drainage, structures, all applicable permits, zoning requirements as required by Company for the operation of the Commercial Facilities in the conduct of the business as authorized by Section1.4 (entitled USE OF PREMISES) of this Agreement. Notwithstanding the assumption of any of these responsibilities by a Sublessee, Company shall remain responsible to ensure all leasehold improvements are completed in accordance with this Agreement. ---|---|--- "
" | 1.10.3.1 | In the event the Initial Improvements are not completed within such twenty-four (24)months due to circumstances beyond the control of Company, County, through its CDR, may extend the completion of the Initial Improvements deadline for a period not to exceed six (6)months. In no event, however, will the extension period be longer than the commensurate time affected by the circumstances beyond the control of Company. ---|---|--- "
" | 1.10.9 | Should Company fail to perform its maintenance and repair responsibilities, County may, but is not obligated to, provide maintenance and make repairs thereon and thereto, upon thirty (30)days prior written notice of its intent to do so; except in case of emergency for which no notice is necessary. Company shall reimburse County for any such reasonable amounts as billed, plus a ten percent (10%)administrative fee. Company may then charge such costs to the project as a maintenance expense. ---|---|--- "
" | 2.12.2.7.5 | Each insurance policy supplied by Company (or its contractor) must be endorsed to provide that the amount of coverage afforded to County by the terms of this Agreement will not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30)days prior written notice by mail. ---|---|--- "
" | 2.12.2.10 | Company (or its contractor) is responsible for and must remedy all damage or loss to any property, including property of County, caused in whole or in part by Company or its contractor, any subcontractor or anyone employed, directed or supervised by Company. Company is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with this Agreement. ---|---|--- "
" | 2.16.2 | Cure ---|---|--- County will not, however, be considered in breach of this Agreement if the fulfillment of its obligation requires activity over a period of time and County has commenced in good faith to perform whatever may be required for fulfillment within ten (10)days after receipt of notice and continues such performance without interruption except for causes beyond its control."
" | 2.19.9.1 | The rejection of this Agreement by a trustee-in-bankruptcy of any ground lessor shall not affect or impair the lien of any mortgage or deed of trust in favor of Lender or Lenders rights with respect to this Agreement. In addition to the leasehold estate created hereunder in favor of Company and all other interest specified in any mortgage or deed of trust in favor of Lender, the lien of such mortgage or deed of trust shall attach to, and shall encumber Companys right to use and possession of the Premises if a trustee- in-bankruptcy of Ground Lessor rejects this Agreement. This Agreement shall not be treated as terminated by reason of Ground Lessors rejection of this Agreement pursuant to Subsection 365(h)(1) of the federal Bankruptcy Code without Lenders prior written consent, and any such purported termination without Lenders prior written consent shall be null and void and of no force and effect. ---|---|--- "
" | 2.19.14 | So long as the mortgage or deed of trust in favor of a Lender is in effect, there shall be no merger of the leasehold estate created by this Agreement into the fee simple estate in the Premises without the prior written consent of such Lender. ---|---|--- "
"3.1 | MAINTENANCE AND OPERATION NONDISCRIMINATION COMPLIANCE ---|--- Company, for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this Agreement for a purpose for which a U.S. Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, Company will maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation and as said Regulation may be amended."
" | 3.2.2 | That in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color or national origin will be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination. ---|---|--- "
"3.13 | AGREEMENTS WITH THE UNITED STATES OF AMERICA ---|--- This Agreement will be subject and subordinate to the provisions and requirements of any existing or future agreement between County and the United States of America relative to the development, operation or maintenance of the Airport. Notwithstanding the foregoing, County agrees that no existing agreements between County and the United States of America relating to the same (i)currently prohibit or materially affect the use and/or operation of the Premises as contemplated under this Agreement, or (ii)defeat the lien of the mortgage or deed of trust in favor of a Lender and/or the leasehold estate in favor of Company created by this Agreement. Should any future agreements between County and the United States of America materially impair the use of the Premises or Lenders interest therein, such agreements shall be considered an action to recover the Premises under Section2.20 above."
"3.14 | OPERATION OF AIRPORT BY THE UNITED STATES OF AMERICA ---|--- This Agreement and all the provisions hereof will be subject to whatever right the United States of America now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of the Airport or the exclusive or nonexclusive use of the Airport by the United States during the time of war or national emergency."
" | 3.22.3.3 | This indemnification of County by Company includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, restoration, any fines or penalties issued to Company, or any other work required by any Federal, State or local governmental agency or political subdivision because of hazardous material located on the Premises or present in the soil or ground water on, under or about the Premises. ---|---|--- "
"4.16 | SUSPENSION AND ABATEMENT ---|--- In the event that Countys operation of the Airport or Companys operation from the Premises should be restricted substantially by action of the federal government or agency thereof or by any judicial or legislative body, then either party hereto will have the right, upon written notice to the other, to a suspension of this Agreement and an abatement of an equitable proportion of the payments to become due hereunder, from the time of such notice until such restrictions will have been remedied and normal operations restored."
"| | | | | | | | ---|---|---|---|---|---|---|---|--- ATTEST: |  | |  | COUNTY: | | COUNTY CLERK |  | |  | COUNTY OF CLARK, a political subdivision of the State of Nevada | | | | By: |  |  |  | |  | By: |  | /s/ Randall H.Walker Its: |  | Deputy Clerk |  | |  | Name: Randall H. Walker |  | |  | |  | Its: Director of Aviation | | | APPROVED AS TO FORM:"
"The Bureau of Land Management (BLM) administers slightly less than 5,000 acres of vacant land that lie underneath the primary airspace used for aircraft departing from McCarran International Airport in Las Vegas, Nevada. Whereas the BLM regularly sells federal land in southern Nevada under the Santini- Burton Act of December23, 1980 (94 Stat. 3382) to the general public who could develop said land in uses that would be incompatible with high levels of aircraft noise, and since Clark County, through the Department of Aviation (DOA) has the resources to cooperate with the BLM in the management of the affected lands, there is an opportunity to create a mutually beneficial relationship."
"Planning projections indicate that air traffic activity at McCarran Airport will continue to increase, and by the year 2005, McCarran is expected to be the eleventh busiest airport in the nation. Some important goals of McCarran Airport in light of these projections are to continue to mitigate aircraft noise to the extent possible, maintain a good neighbor posture with the community, and maintain airport capacity. The most effective method to accomplish these goals is to prevent future incompatible development in noise impacted areas."
"V. | Provisions ---|--- This Agreement shall begin on the day of signing by both the above mentioned parties to this Agreement and shall continue indefinitely until terminated in writing upon thirty days notice by either of the parties to the Agreement. Both parties agree to meet thirty days prior to termination of this Agreement to discuss the reasons for termination. For purposes of modifying this Agreement, both parties shall meet once a year to discuss land use objectives, opportunities and concerns, and prepare an annual operating agreement. The annual operating agreement shall detail specific objectives, needs, operational plans, evaluate each partys roles, and work out any difficulties. However, should immediate modifications to the Agreement be required by either party, at any time, both parties may meet and upon written agreement, the modifications shall be incorporated into the Agreement subject to concurrence of both parties."
"Both parties recognize that this Agreement shall not be used to grant any use, without the appropriate authority, to Clark County. In addition, it is recognized that neither agency may enter into other cooperative management agreements with other entities concerning management of the Project Site without written agreement from both parties."
"(1) Recreation and public purpose act conveyances.Not less than 30 days before the offering of lands for sale or exchange pursuant to subsection (a), the State of Nevada or the unit of local government in whose jurisdiction the lands are located may elect to obtain any such lands for local public purposes pursuant to the provisions of the Recreation and Public Purposes Act. Pursuant to any such election, the Secretary shall retain the elected lands for conveyance to the State of Nevada or such unit of the local government in accordance with the provisions of the Recreation and Public Purposes Act."
"(A) Issuance.Upon application, by a unit of local government or regional governmental entity, the Secretary, in accordance with this Act and the Federal Land Policy and Management Act of 1976, and other applicable provisions of law, shall issue right-of-way grants on Federal lands in Clark County, Nevada, for all reservoirs, canals, channels, ditches, pipes, pipelines, tunnels, and other facilities and systems needed for"
"THIS SECOND LEASE AMENDMENT (Amendment) is entered into as of this 14th day of March, 2013, by and between Beltway Business Park Office No.2, LLC, a Nevada limited liability company (Landlord) and InNEVation L.L.C., a Nevada limited liability company (Tenant) and amends the Lease Agreement between Landlord and Tenant dated April24, 2012 as amended on February 19, 2013 (collectively the Lease) pursuant to which Tenant leased from Landlord the Existing Premises consisting of 24,967 rentable square feet, designated as Suite 300 and 19,928 rentable square feet, designated as Suites 160 and 260; all at 6795 Edmond Street, Las Vegas Nevada (Building)."
"Tenant shall be allowed access to the 2nd Expansion Premises (without charge and without affecting the 2nd Expansion Premises Commencement Date) commencing on February15, 2013 for the limited purpose of installing wiring, telephone service and furniture and for performing other work as Tenant deems necessary; provided such access is in an orderly manner so as to avoid unreasonably interfering with or interrupting the Landlords construction of the Building/2nd Expansion Premises or normal business operations and quiet enjoyment of the other occupants in the Building, in full compliance with all Building rules and regulations (as reasonably adopted by Landlord for the construction of the Building) and all applicable governmental laws, rules, regulations, and codes. Tenants access and use of the 2nd Expansion Premises, for any reason (including but not limited to the performance of Tenants Work), shall be subject to Tenants compliance with every provisions of this Lease, except that Tenant shall not be liable for the payment of Rent until the 2nd Expansion Premises Commencement Date. Tenant shall obtain any and all permits, licenses, and approvals that may be required in order to make lawful Tenants entry onto the Building/2nd Expansion Premises and performance of the Tenants Work. The rights granted to Tenant by this paragraph shall be restricted solely to the 2nd Expansion Premises and shall not extend to any other portion of the Building without Landlords prior written consent. Neither Landlord nor Landlords contractors shall have any responsibility or liability whatsoever for the maintenance of the 2nd Expansion Premises or any work performed by Tenant prior to the 2nd Expansion Premises Commencement Date. Tenants activities within the Building/2nd Expansion Premises prior to the 2nd Expansion Premises Commencement Date shall be at its sole risk, and neither Landlord nor Landlords contractors shall be responsible for the safety of Tenant or its agents or employees, or for the condition or loss of any items of personal property brought onto the"
"THIS SIXTH AMENDMENT TO LEASE (Amendment) is entered into as of this 19th day of January, 2015, by and between Beltway Business Park Office No.2, LLC, a Nevada limited liability company (Landlord) and InNEVation L.L.C., a Nevada limited liability company (Tenant) and amends the Lease Agreement between Landlord and Tenant dated April24, 2012 as amended pursuant to that: First Amendment dated February19, 2013, Second Amendment dated March14, 2013, Third amendment dated August20, 2013, Fourth Amendment Dated September1, 2013 and Fifth Amendment dated January12, 2015 (collectively the Lease), wherein Tenant leased from Landlord the Existing Premises consisting of 63,735 rentable square feet, designated as Suites 110, 120, 160, 215, 220, 260 and 300 at 6795 Edmond Street, Las Vegas Nevada (Building)."
"10\. The parties agree no commission earned in connection with the execution of this Amendment. Landlord and Tenant covenant to pay, hold harmless and indemnify each other from and against any and all cost, expense or liability for and compensation, commissions or charges claimed by any other broker or agent utilized by the indemnitor with respect to this Amendment or the negotiation hereof."
" | 2. | Term. ---|---|--- The term of the Lease for the entire Premises is hereby extended for an additional 60 months commencing May15, 2017 and terminating on May14, 2022 (Extended Lease Term). Tenants occupancy during the Extended Lease Term shall be under the same covenants, agreements, terms, provisions and conditions as are contained in the Lease for the current term, except as otherwise set forth in this Amendment."
"Complex Common Area Expenses. Consists of Operating Expense obligations of that certain block of buildings (the Complex); including, but not limited to expenses shared by multiple buildings within the Complex, such as shared utilities, parking lot sweeping etc. Tenant shall initially be responsible for Complex Common Area Expenses equal to: Tenant shall initially be responsible for Project Common Area Expenses equal to: (i)7th Expansion Premises: 2.21% and (ii)8th Expansion Premised: 3.76%."
"Building Common Area Expenses: Consists of Operating Expense obligations of the Building including, but are not limited to: (i)Real Property Taxes, (ii)All Risk Property Insurance, and (iii)Property Management and maintenance/repair expenses. Tenant shall initially be responsible for Building Common Area Expenses equal to: Tenant shall initially be responsible for Project Common Area Expenses equal to: (i)7th Expansion Premises: 4.39% and (ii)8th Expansion Premised: 7.46%."
"9. Confidentiality. The Employee acknowledges and agrees that the Employee will keep the terms, amount, and facts of, and any discussions leading up to, this Separation Agreement strictly and completely confidential, and that the Employee will not communicate or otherwise disclose to any employee of the Company (past, present, or future), or to any member of the general public, the terms, amounts, copies, or fact of this Separation Agreement, except as may be required by law or compulsory process; provided, however, that the Employee may make such disclosures to Employees tax/financial advisors or legal counsel as long as they agree to keep the information confidential. If asked about any of such matters, to the extent permissible, the Employees response shall be that Employee may not discuss any of such matters, except that nothing in this Separation Agreement shall affect the Employees rights to engage in activity protected by Section 7 of the National Labor Relations Act. Notwithstanding anything herein to the contrary, nothing in this Section 9 shall: (i) prohibit the Employee from making reports of possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or regulation; or (ii) require notification or prior approval by the Company of any reporting described in clause (i)."
"In the event of a breach of the confidentiality provisions set forth in this Section 9 of the Separation Agreement by the Employee, the Company may suspend any payments or benefits due under this Separation Agreement pending the outcome of litigation and/or arbitration regarding such claimed breach of this Separation Agreement by the Employee."
"17. Notices. For the purpose of this Separation Agreement, notices and all other communications provided for in the Separation Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Separation Agreement, or to such other address as either Party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt."
"ARGOS THERAPEUTICS, INC.|  | INVETECH PTY LTD ---|---|--- |  |  |  |  By: /s/ Lori Harrelson|  | By: /s/ Andreas Knaack |  |  Name: Lori Harrelson|  | Name: Andreas Knaack |  |  Title: Vice President Finance|  | Title: Director "
"(a)On the anniversary of the Issue Date for each of the first three years following the Issue Date, the outstanding principal amount, if any, plus accrued and unpaid interest thereon (whether or not that interest has been capitalized) shall automatically be deemed to be reduced by $250,000; provided, that the reduction pursuant to this Section 3(a) shall occur if and only if the Company has paid all Debt Service Payments due on or prior to the relevant anniversary date and no Event of Default, Fundamental Transaction or Change of Control has occurred on or prior to such anniversary date."
"(b)At any time and from time to time, the Company and the Holder may agree to a sale from the Company to the Holder of all or a portion of the Companys intellectual property relating to the Companys automated manufacturing program, at a price and on terms to be agreed between the Company and the Holder (each such sale, an IP Sale). If, at the time of any IP Sale, there remains outstanding any amounts under this Note, the purchase price in connection with such IP Sale may be payable, at the option of the Holder, (i) by cancellation of all or a portion, as applicable, of any outstanding principal and any accrued but unpaid interest under this Note (whether or not that interest has been capitalized) on a dollar for dollar basis, (ii) in cash (by check or wire) or (iii) by a combination of both."
"(d)Change of Control means any Fundamental Transaction other than (i) any merger of the Company or any of its direct or indirect, wholly-owned subsidiaries with or into any of the foregoing persons, (ii) any reorganization, recapitalization or reclassification of the shares of Common Stock in which holders of the Companys voting power immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly-traded securities and, directly or indirectly, are, in all material respects, the holders of the voting power of the surviving entity (or entities with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company or any of its subsidiaries."
"(c)Collection and Other Costs. The Company agrees, subject only to any limitation imposed by applicable law, to pay all costs and expenses, including attorneys fees and disbursements, incurred by the Holder in endeavoring to collect any amounts payable hereunder or in connection with any enforcement or action under this Note or any bankruptcy, reorganization, receivership or other proceeding of the Company, including, without limitation, if (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors rights and involving a claim under this Note."
"(a)The Investor shall furnish in writing to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5)Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify the Investor of the information the Company requires from the Investor if the Investor is to have any of the Registrable Securities included in such Registration Statement. The Investor shall provide such information to the Company at least two (2)Business Days prior to the first anticipated filing date of such Registration Statement if the Investor is to have any of the Registrable Securities included in such Registration Statement. If the Investor fails to provide to the Company the information required by this Section 4(a) by such date, the Company shall not be obligated to include the Investors Registrable Securities in such Registration Statement and shall not be obligated to pay the Investor liquidated damages with respect to the lack of registration of such Registrable Securities under this Agreement."
"(d)The Investor agrees that, on any trading day for the principal market on which the Common Stock is then listed (the Principal Market), it will not dispose of or agree to dispose of, whether or not pursuant to the Registration Statement, a number of shares of Registrable Securities in the aggregate that exceeds 10% of the weighted average daily trading volume of the Common Stock over the 20 consecutive trading days immediately preceding such trading day (as adjusted for stock dividends, stock splits, stock combinations, recapitalizations and similar events affecting the Common Stock), without the Companys prior consent."
"(b) The arbitrator shall permit the parties to conduct reasonable discovery and is empowered to award all remedies otherwise available in a court of competent jurisdiction and any judgment rendered by the arbitrator may be entered by any court of competent jurisdiction.The arbitrator shall issue an award in writing and state the essential findings and conclusions on which the award is based.This arbitration agreement shall provide the exclusive remedy of the parties to seek redress of claims, and each party knowingly and voluntarily waives the right to a trial before a judge or jury, and any right he, she, or it might have to seek redress in any other forum, except for the right to file a charge with applicable administrative agencies (including, but not limited to the National Labor Relations Board, Equal Employment Opportunity Commission, the Maryland Workers Compensation Commission or Division of Unemployment Insurance ).If Employee still has the right to and chooses to pursue such administrative claim after exhausting all administrative remedies, such claim would be subject to arbitration under this arbitration agreement to the extent permitted by applicable law."
"(e) By agreeing to arbitration, Choice and Employee do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. In any such judicial action: (a)each of the parties irrevocably and unconditionally consents to the exclusive jurisdiction and venue of the federal or state courts located in Montgomery County, Maryland (the Maryland Courts) for the purpose of any pre-arbitral injunction, pre- arbitral attachment, or other order in aid of arbitration proceedings, and to the non-exclusive jurisdiction of such courts for the enforcement of any judgment on any award; (b)each of the parties irrevocably waives, to the fullest extent they may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Maryland Court."
(c) Any payments to be made under this Agreement upon a termination of employment shall only be made upon a separation from service within the meaning of Section409A. Whether Employee has a separation from service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section409A.
"(a) Executive shall be entitled to participate in the employee benefit plans of the Company as shall be in effect for similarly situated executives of the Company generally from time to time, subject to the terms and conditions of each such plan. Executive shall be entitled to paid vacation each year in accordance with Company policy as in effect from time to time."
"(a) Executive agrees that for so long as Executive is employed by the Company or any of its affiliates and for a period of one year thereafter (collectively, the Restricted Period), Executive will not, individually or on behalf of any person, firm, partnership, association, business organization, corporation, or other entity engaged in the Business (as defined below) of the Company or its affiliates, engage in or perform, anywhere within the United States, Canada, and any other such region in which the Company or its affiliates operates, any activities that are competitive with the Business of the Company or its affiliates. Nothing herein shall be construed to prohibit Executive from acquiring shares of capital stock of any public corporation; provided that such investment does not exceed 5% of the stock of such public corporation."
"provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section14(c), the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings, and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of Executive and direct Executive to sue for a refund or to contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction, and in one or more appellate courts, as the Company shall determine;"
"provided, further, that, if the Company pays such claim and directs Executive to sue for a refund, the Company shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and"
"(and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim described in Section14(c) that does not result in the remittance of any federal, state, local, and foreign income, excise, social security, and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. Notwithstanding any other provision of this Section14, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, all or any portion of any Gross-Up Payment, and Executive hereby consents to such withholding."
"15\. Invalidity of Any Provision. It is the intention of the parties hereto that Sections11 through 13 of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of each state and jurisdiction in which such enforcement is sought, but that the unenforceability (or the modification to conform with such laws or public policies) of any provision hereof shall not render unenforceable or impair the remainder of this Agreement, which shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provisions. The parties further agree to alter the balance of this Agreement to render the same valid and enforceable."
"(a) In consideration of the payments and benefits set forth in the Employment Agreement, Executive, for himself or herself and, to the maximum extent permitted by law, on behalf of each of his or her agents, representatives, heirs, executors, administrators, assigns, and successors (collectively, the Releasing Parties), hereby unequivocally, fully, and irrevocably releases, waives, and discharges the Company and its former, current, or future officers, directors, agents, representatives, and employees, all affiliates of the Company, and all former, current, or future officers, directors, agents, representatives, and employees of any such affiliates, as well as all employee benefit plans (collectively, the Released Persons) from any and all past, present, direct, indirect and/or derivative liabilities, claims, rights, actions, causes of action, counts, obligations, sums of money due, attorneys fees, costs, judgments, suits, debts, covenants, agreements, promises, demands, damages, and charges of whatever kind or nature, known or unknown, in law or in equity, asserted or that could have been asserted, under federal, state, or local statute (including, without limitation, TitleVII of the Civil Rights Act of 1964,"
"5.Compromise. The Parties agree that this Agreement is in compromise and settlement of a dispute between them, and it shall not be considered as an admission of the truth or correctness of any claim allegation against them, or of fault or liability by them, each Party denying any fault or liability."
"(c)This document, together with the Settlement Agreement and ADEA Release between Warner and lcagen dated July 7, 2017, contains the entire agreement between the Parties hereto with respect to the subject matter hereof, and supersedes and cancels all previous agreements, contracts, covenants, commitments, obligations, and writings between the parties pertaining to the subject matter hereof. Each of the Parties further represents that no other understandings, statements, promises, or inducements contrary to the terms of this Agreement, whether oral or written, exist, and that he/it does not rely and has not relied upon any representation or statement made by another Party or any of their representatives with regard to the subject matter of this Agreement (other than those representations and statements made in this Agreement)."
"(d)At-Will Employment. Executive and the Company agree that Executives employment with the Company constitutes at-will employment. Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive. However, as described in this Agreement or in the Companys Severance Plan for Section 16 Officers (the Section 16 Severance Plan), Executive may be entitled to severance benefits depending upon the circumstances of termination of Executives employment. Executive agrees to resign from all positions held with the Company and its affiliates immediately following the termination of Executives employment as a Section 16 Officer if the Company's Board of Directors so requests."
"(vi)subject to execution by Executive of a supplemental Release as described in Section 8(a), reimbursement by the Company for any loss incurred in the sale of Executives primary North Carolina residence following the Termination Date, calculated in accordance with the Loss on Sale Severance Benefits set forth in Section 3(e)(iii) above. Such amount shall be paid to Executive in lump sum (less applicable withholdings) within two-and-one-half-months following the sale of the residence, except as provided in Section 7(b) below."
"(i)Any Person as defined in Section 3(a)(9) of the Act, including a group (as that term is used in Sections 13(d)(3) and 14(d)(2) of the Act), but excluding the Cree Entities and any employee benefit plan sponsored or maintained by the Cree Entities (including any trustee of such plan acting as trustee), who together with its affiliates and associates (as those terms are defined in Rule 12b-2 under the Act) becomes the Beneficial Owner (within the meaning of Rule 13d-3 under the Act) of more than 50% of the then- outstanding shares of common stock of the Company or the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of its directors. For purposes of calculating the number of shares or voting power held by such Person and its affiliates and associates under this clause (i), there shall be excluded any securities acquired by such Person or its affiliates or associates directly from the Cree Entities."
"(k)LTD Disability. For purposes of this Agreement, LTD Disability will mean that Executive is Partially Disabled or Totally Disabled within the meaning of the Companys current long-term disability plan (or such similar term or terms in any long-term disability plan of the Company that replaces its current long-term disability plan) and has satisfied the elimination period for benefits eligibility under such plan."
"WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions and demands that the Executive may have against the Company as defined herein, including, but not limited to, any and all claims arising out of, or related to, Executives employment with, or separation from, the Company;"
"(d)Collective/Class Action Waiver. If any claim is not subject to release, to the extent permitted by law, Executive waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a claim in Cree or any other Releasee identified in this Agreement is a party."
"(c)Executive further affirms that Executive is not aware of, nor has been retaliated against for reporting any allegations of wrongdoing by Cree or its officers, including any allegations of corporate fraud. Executive affirms that, to the best of Executives knowledge, Cree has provided accurate and transparent financial information to its shareholders and the public and abided by all provisions of all applicable laws and regulations, including The Sarbanes-Oxley Act of 2002. Both Parties acknowledge that this Agreement does not limit either partys right, where applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency."
"5.Mutual Release; Disclaimer of Liability. Each of the Parent and the Purchaser on the one hand and each of the Sellers on the other hand, each on behalf of itself and each of its respective successors and past and present subsidiaries, Affiliates, assignees, officers, directors, employees, controlling persons, Representatives, agents, attorneys, auditors, stockholders, equity holders and advisors, and any family member, spouse, heir, trust, trustee, executor, estate, administrator, beneficiary, foundation, fiduciary, predecessors, successors and assigns of each of them (the Releasors), does, to the fullest extent permitted by law, hereby fully release, forever discharge and covenant not to sue any other Party, any of their respective successors and past and present subsidiaries, Affiliates, assignees, officers, directors, employees, controlling persons, Representatives, agents, attorneys, auditors, stockholders, equity holders and advisors, and any family member, spouse, heir, trust, trustee, executor, estate, administrator, beneficiary, foundation, fiduciary, predecessors, successors and assigns of each of them (collectively the Releasees), from and with respect to any and all past, present, direct, indirect, individual, class, representative and derivative liability, claims, rights, actions, causes of action, suits, liens, obligations, accounts, debts, losses, demands, judgments, remedies, agreements, promises, liabilities, covenants, controversies, costs, charges, damages, expenses and fees (including attorneys, financial advisors or other fees) (Claims), howsoever arising, of every kind and nature, whether based on any law or right of action (including any claims under federal securities laws or state disclosure law or any claims that could be asserted derivatively on behalf of the Parties), known or unknown, asserted or that could have been asserted, matured or unmatured, contingent or fixed, liquidated or unliquidated, accrued or unaccrued, foreseen or unforeseen, apparent or not apparent, which Releasors, or any of them, ever had or now have or can have or shall or may hereafter have against the Releasees, or any of them, in connection with, arising out of, based upon or related to, directly or indirectly, the Purchase Agreement (other than the Surviving Covenants) or the transactions contemplated therein or thereby, including any breach, non-performance, action or failure to act under the Purchase Agreement, the events leading to the termination of the Purchase Agreement, any deliberations or negotiations in connection with the Purchase Agreement, the consideration to be received under the Purchase Agreement, including any royalties thereunder, and any SEC filings, public filings, periodic reports, press releases, proxy statements or other statements issued, made available or filed relating, directly or indirectly, to the Purchase Agreement or the transactions consummated at the Closing. The release contemplated by this Section 5 is intended to be as broad as permitted by law and is intended to, and does, extinguish all Claims of any kind whatsoever, whether in law or equity or otherwise, that are based on or relate to facts, conditions, actions or omissions (known or unknown) that have existed or occurred at any time to and including as of the date hereof. Each of the Releasors hereby expressly waives to the fullest extent permitted by law any rights it may have under any statute or common law principle under which a general release does not extend to claims which such Party does not know or suspect to exist in its favor at the time of executing the release. Nothing in this Section 5 shall (i)apply to any action by any Party to enforce the rights and obligations imposed pursuant to this Agreement, including under the Surviving Covenants, the Transaction Documents, including the Transfer Documents, or the Parent and/or the Purchasers rights in and to the Transferred Assets as conveyed to the Parent and/or the Purchaser at the Closing pursuant to the Purchase Agreement, or (ii)constitute a release by any Party for any Claim arising under this Agreement, the Transaction Documents, including the Transfer Documents, or the Parent and/or the Purchasers rights in and to the Transferred Assets as conveyed to the Parent and/or the Purchaser at the Closing pursuant to the Purchase Agreement."
"7. NET LEASE. This Agreement is a net lease, and Lessees obligation to pay all Rent and other amounts due and owing hereunder is absolute and unconditional and shall not be terminated, extinguished, diminished, setoff or otherwise impaired by any circumstance whatsoever, including by (a)any claim, setoff, counterclaim, defense or other right which Lessee may have against Lessor or any affiliate of Lessor; (b)any defect in the title, condition, design, operation, merchantability or fitness for use of the Equipment, or any eviction of the Equipment"
"(b) Lessee represents, warrants and covenants to Lessor the following: (i)all of the Equipment was originally placed in service by the Lessee on a date that is no more than three (3)months before the closing on the purchase of the Equipment by the Lessor and lease back of such Equipment under this Agreement to the Lessee (the Original Placed-in-Service Date), (ii)during the period beginning on the Original Placed-in-Service Date and ending on the date of the purchase of the Equipment by the Lessor and lease back of such Equipment under this Agreement to the Lessee, no person or entity other than the Lessee has had any ownership"
"in the CAAA) or the Assumption Option (as defined in the CAAA) having been effectuated pursuant to the CAAA; and/or (x)any payment default has occurred and is continuing under any master lease agreement that currently or may hereinafter exist between Lessor and Lessee or any affiliate of Lessee (after giving effect to any applicable grace or cure periods therein) (each of (i)through (x), a Default)."
"(b) If a Default shall have occurred and be continuing, Lessor shall have the right to take any one or more of the following actions: (i)cancel or terminate this Agreement and/or each Lease and repossess the Equipment; (ii)proceed by appropriate court action or actions at law or in equity to enforce performance by Lessee of the terms and conditions of this Agreement and each Lease and/or recover damages for the breach thereof; (iii)accelerate all of the amounts due hereunder by requiring Lessee to pay Lessor an amount equal to the sum of (A)all Rent and any other amounts accrued to the date of such payment, plus (B)the aggregate Termination Value for all Equipment; (iv)take any other action as provided for in the Security Agreement (as defined in the Master Purchase Agreement) and/or the DACA (as defined in the Master Purchase Agreement); (v)deliver a Default Notice (as defined in the CAAA) under and pursuant to the terms of the CAAA; and/or (vi)exercise any other right or remedy available at law or in equity."
"(c) Promptly, but in any event within ten (10)business days after receipt thereof, a copy of each periodic report received by the Lessee during the Lease Term from each maintenance provider for the Equipment and, if requested by Lessor, each periodic report and other notice sent to or received by a counterparty to a Project Document."
"(a) Release. To be eligible to receive any benefits under the Plan, a Participant must sign a general waiver and release in substantially the form attached hereto as Exhibit B, C, or D, as applicable (the Release), and such Release must become effective in accordance with its terms, in each case within sixty (60) days following the Qualifying Termination. The Plan Administrator, in its sole discretion, may modify the form of the required Release to comply with applicable law, and any such Release may be incorporated into a termination agreement or other agreement with the Participant."
"(b) Amendment or Termination. The Company reserves the right to amend or terminate the Plan, any Participation Notice issued pursuant to the Plan or the benefits provided hereunder at any time; provided, however, that no such amendment or termination will apply to any Participant who would be adversely affected by such amendment or termination unless such Participant consents in writing to such amendment or termination. Any action amending or terminating the Plan or any Participation Notice will be in writing and executed by a duly authorized officer of the Company."
"(d) Decision on Review. The Plan Administrator will act on each request for review within 60 days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional 60 days), for processing the request for a review. If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial 60 day period. This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the review. The Plan Administrator will give prompt, written or electronic notice of its decision to the"
"applicant. Any electronic notice will comply with the regulations of the U.S. Department of Labor. In the event that the Plan Administrator confirms the denial of the application for benefits, in whole or in part, the notice will set forth, in a manner designed to be understood by the applicant, the following:"
"Except as otherwise set forth in this Release, I hereby generally and completely release the Company and its affiliates, and its and their parents, subsidiaries, successors, predecessors and affiliates, and its and their partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns (collectively, the Released Parties), of and from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to or on the date I sign this Release (collectively, the Released Claims). The Released Claims include, but are not limited to: (a) all claims arising out of or in any way related to my employment with the Company and its affiliates, or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company and its affiliates, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, provincial and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Employee Retirement Income Security Act of 1974 (as amended), the federal Family and Medical Leave Act (as amended) (FMLA), the California Family Rights Act (as amended) (CFRA), the California Labor Code (as amended), and the California Fair Employment and Housing Act (as amended)."
"law; or (c) any claims for breach of the Plan arising after the date that I sign this Release. In addition, I understand that nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or any other government agency, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might have against the Released Parties that are not included in the Released Claims."
"In giving the releases set forth in this Release, which include claims which may be unknown or unsuspected by me at present, I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows:A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.I hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to the releases granted herein, including but not limited to the release of unknown and unsuspected claims granted in this Release."
"3.3 Expenses. Manager shall be reimbursed by the OptiNose Companies for all ordinary, necessary and reasonable expenses actually incurred by Manager in the course of the performance of services under this Agreement. Manager shall keep an itemized account of such expenses, which shall be submitted to the OptiNose Companies monthly together with original receipts."
"4.3 Termination by the OptiNose Companies for Cause. The OptiNose Companies may, upon written notice to Manager, immediately terminate Managers employment for cause. Cause shall exist upon (a)Managers breach of any fiduciary duty or material legal or contractual obligation to an OptiNose Company or any of its affiliates (including, without limitation, pursuant to an OptiNose Company or affiliate policy or the restrictive covenants set forth in Section5 of this Agreement or any other applicable restrictive covenants between the Manager and an OptiNose Company or any of its affiliates), or an OptiNose Companys direct or indirect equity holders, (B)Managers failure to follow the reasonable instructions of the Board (other than as a result of total or partial incapacity due to physical or mental illness), which breach, if curable, is not cured within 30 days after notice to Manager specifying in reasonable detail the nature of such breach, or, if cured, recurs within 180 business days, (C)Managers gross negligence, willful misconduct, fraud, insubordination, acts of dishonesty or conflict of interest relating to an OptiNose Company or any of its affiliates or direct or indirect equityholders or (D)Managers commission of any misdemeanor which has a material impact on the affairs, business or reputation of any OptiNose Company or any of its affiliates or Managers indictment for, or plea of nolocontendere to, a crime constituting a felony under the laws of the United States or any state thereof. Upon a termination of Managers employment for Cause, all of Managers rights to compensation and benefits under Section3 of this Agreement or otherwise shall immediately terminate, except that Manager shall be entitled to (a)any unpaid portion of Managers compensation for periods before the date of the first occurrence of the circumstances constituting cause for termination under this provision; (b)any accrued benefits up to such date; and (c)any benefits that are required to be provided after such date under the general provisions of the employee benefit plans in which Manager participated as of the date of termination."
"8. Arbitration. You agree that all disputes and controversies arising under or in connection with this Letter Agreement, other than seeking injunctive or other equitable relief under Section5.10, will be settled by arbitration conducted before one (1)arbitrator mutually agreed to by the Company and you, sitting in New York, New York or such other location agreed to by you and the Company, in accordance with the National Rulesfor the Resolution of Employment Disputes of the American Arbitration Association then in effect; provided, however, that if the Company and you are unable to agree on a single arbitrator within 30 days of the demand by another party for arbitration, an arbitrator will be designated by the New York Office of the American Arbitration Association. The determination of the arbitrator will be final and binding on you and the Employer. Judgment may be entered on the award of the arbitrator in any court having proper jurisdiction. Each party will bear their own expenses of such arbitration."
"3.9You hereby agree to indemnify the Company and hold it harmless from and against any loss, claim or liability, including attorneys' fees or legal expenses, incurred by the Company as a result of any breach by you of, or any inaccuracy in, any representation, warranty or statement made by you in this Agreement or the breach by you of any terms or conditions of this Agreement."
" ---|---|--- 8.1The stock certificate(s) representing the Shares will be retained by the Company until the Shares are no longer subject to forfeiture.If any portion of the Shares is forfeited, the forfeited Shares will be transferred to the Company.The Stock Power and Assignment Separate from Certificate attached as Exhibit C will be used to effect the transfer in the event of forfeiture.Please do not fill in any blanks other than the signature line(s) in the Stock Power and Assignment Separate from Certificate.The purpose of this assignment is to enable the Company to exercise its rights without requiring additional signatures from you."
"local or foreign withholding tax obligations that arise either upon receiving of the Shares or as the forfeiture restrictions on any Shares lapse.Notwithstanding the previous sentence, you acknowledge and agree that the Company and any Related Company have the right to deduct from payments of any kind otherwise due to you any federal, state or local taxes of any kind required by law to be withheld with respect the Award."
"14.3No Waiver.No waiver of any provision of this Agreement will be valid unless in writing and signed by the person against whom such waiver is sought to be enforced, nor will failure to enforce any right hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder."
3.7You hereby confirm that you understand that at the present time Rule 144 of the Securities and Exchange Commission (the SEC) may not be relied on for the resale or distribution of the Shares by you.You understand that the Company has no obligation to you to register resale of the Shares with the SEC and has not represented to you that it will so register the resale of the Shares.
"required to (a) transfer on its books any Shares that have been sold or transferred in violation of the provisions of this Agreement or (b) treat as the owner of the Shares, or otherwise accord voting, dividend or liquidation rights to, any transferee to whom the Shares have been transferred in contravention of this Agreement."
" ---|---|--- You acknowledge that determining the actual tax consequences to you of receiving or disposing of the Shares may be complicated.These tax consequences will depend, in part, on your specific situation and may also depend on other variables not within the control of the Company.You are aware that you should consult a competent and independent tax advisor for a full understanding of the specific tax consequences to you of receiving or disposing of the Shares.Prior to executing the Award Notice, you either have consulted with a competent tax advisor independent of the Company to obtain tax advice concerning the receiving or disposition of the Shares in light of your specific situation or you have had the opportunity to consult with such a tax advisor but chose not to do so."
"WHEREAS, the Participant previously received an award of membership interests in WGV Associates, LLC, a Texas limited liability company (WGVA), and, in connection with such award, made a timely election under Code Section83(b) to include the value of the award in income for the tax year in which the award was received;"
"2\. Subject to Plan. This Agreement is subject to the terms and conditions of the Plan, and the terms of the Plan shall control to the extent not otherwise inconsistent with the provisions of this Agreement. The capitalized terms used herein that are defined in the Plan shall have the same meanings assigned to them in the Plan. This Agreement is subject to any rules promulgated pursuant to the Plan by the Board or the Committee and communicated to the Participant in writing."
"development projects; equipment; software; software source documents; computer programs and codes; source code, object code and other documentation regarding software products; programming standards; user manuals; technical manuals; training manuals; users names or passwords; business practices; operations; policies; finances and financial information and data; business plans; marketing and sales plans, strategies and methods; budgets; forecasts; pricing and pricing strategies; bidding information and strategies; costs; contracts and contract terms (actual and proposed); contractual relationships; customers and suppliers (actual and prospective); customer and supplier lists, profiles and preferences; customer and supplier nonpublic personal information; business records; audits; management methods and information; reports, recommendations and conclusions; and other business information disclosed or made available to the Participant by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i)is generally available to and known by the public as of the date of this Agreement or (ii)becomes generally available to and known by the public (other than as a result of the Participants breach of this Agreement or any other agreement or obligation to keep such information confidential). The Participant acknowledges and agrees that all Confidential Information, whether prepared or compiled by the Participant or the Company or furnished to the Participant during the Participants employment with (or if the Participant is a Contractor or an Outside Director, provision of services to) the Company, shall be the sole and exclusive property of the Company."
"10\. Rights of a Stockholder. Except as provided in Section4 and Section5 above, the Participant shall have, with respect to his or her Awarded Shares, all of the rights of a stockholder of the Company, including the right to vote the shares, and the right to receive any dividends thereon, subject to the provisions of this Section10. Any stock dividends paid with respect to Awarded Shares shall at all times be treated as Awarded Shares and shall be subject to all restrictions placed on such Awarded Shares; any such stock dividends paid with respect to such Awarded Shares shall vest as the related Awarded Shares become vested. Any cash dividends paid with respect to Non- Vested Shares shall at all times be subject to the provisions of this Agreement (including the vesting and forfeiture provisions set forth above); any such cash dividends paid with respect to such Non-Vested Shares shall vest as such shares become Vested Shares, and shall be paid to the Participant on the date the Non-Vested Shares to which such cash dividends relate become Vested Shares."
"15\. Investment Representation. Unless the Awarded Shares are issued in a transaction registered under applicable federal and state securities laws, by his or her execution hereof, the Participant represents and warrants to the Company that all Common Stock which may be purchased and or received hereunder will be acquired by the Participant for investment purposes for his or her own account and not with any intent for resale or distribution in violation of federal or state securities laws. Unless the Common Stock is issued to him or her in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect to the Common Stock shall bear an appropriate restrictive investment legend and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Participant obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required."
"a. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the invalid, illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that is contained in this Agreement and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable term, provision, or agreement had never been contained herein."
"24\. Parties Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns, subject to the limitation on assignment expressly set forth herein. No person shall be permitted to acquire any Awarded Shares without first executing and delivering an agreement in the form satisfactory to the Company making such person or entity subject to the restrictions on transfer contained herein."
"Pursuant to the Restricted Stock Award Grant Notice (the Grant Notice) to which this Restricted Stock Award Agreement (this Agreement) is attached, OrthoPediatrics Corp., a Delaware corporation (the Company), has granted to Holder the number of shares of Restricted Stock (the Shares) under the OrthoPediatrics Corp. 2017 Incentive Award Plan, as amended from time to time (the Plan), as set forth in the Grant Notice. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and Grant Notice."
"(c) Legend. Certificates representing Shares issued pursuant to this Agreement shall, until all Restrictions (as defined below) imposed pursuant to this Agreement lapse or have been removed and the Shares have thereby become vested or the Shares represented thereby have been forfeited hereunder, bear the following legend (or such other legend as shall be determined by the Administrator):"
"CBTX,Inc., a Texas corporation, (the Company), pursuant to its 2017 Omnibus Incentive Plan, as the same may be amended from time to time (the Plan), hereby grants to the individual listed below (the Participant) the number of shares of Restricted Stock set forth below. This award of Restricted Stock is subject to all of the terms and conditions as set forth herein and in the Restricted Stock Award Agreement attached hereto as ExhibitA (the Agreement) (including without limitation the Restrictions on the Shares set forth in the Agreement) and the Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Restricted Stock Award Grant Notice (the Grant Notice) and the Agreement."
"(a) Forfeiture. Should the Participant cease to provide services to the Company (or any Subsidiary or Affiliate) in the capacity of an employee, director or consultant (collectively referred to herein as Service) for any reason or no reason, any portion of the Award (and the Restricted Stock subject thereto) that has not vested prior to or in connection with such termination of Service (after taking into consideration any accelerated vesting and lapsing of Restrictions which may occur in connection with such termination of employment (if any)) shall thereupon be forfeited immediately and without any further action by the Company, and the Participants rights in any unvested Restricted Stock shall thereupon lapse and expire. For purposes of this Agreement, Restrictions shall mean the restrictions on sale or other transfer set forth in Section4(c)hereof and the risk of forfeiture set forth in this Section3(a). No Restricted Stock which has not become vested as of the date on which the Participant incurs a termination of Service shall thereafter become vested."
"(d) Ownership of Shares. Subject to the restrictions set forth in the Plan and this Agreement, the Participant shall possess all incidents of ownership of the shares of Restricted Stock, including, without limitation, (i)the right to vote such shares of Restricted Stock, and (ii)subject to Section4(d), the right to receive dividends with respect to such shares of Restricted Stock of (but only to the extent declared and paid to holders of shares by the Company in its sole discretion), provided, however, that any such dividends shall be treated, to the extent required by applicable law, as additional compensation for tax purposes if paid on the shares Restricted Stock."
"(vi) To amend the Plan in any respect the Board deems necessary or advisable, including, without limitation, by adopting amendments relating to Incentive Stock Options and certain nonqualified deferred compensation under Section 409A of the Code and/or bringing the Plan or Awards granted under the Plan into compliance with the requirements for Incentive Stock Options or ensuring that they are exempt from, or compliant with, the requirements for nonqualified deferred compensation under Section 409A of the Code, subject to the limitations, if any, of applicable law. If required by applicable law or listing requirements, and except as provided in Section 9(a) relating to Capitalization Adjustments, the Company will seek stockholder approval of any amendment of the Plan that (A) materially increases the number of shares of Common Stock available for issuance under the Plan, (B) materially expands the class of individuals eligible to receive Awards under the Plan, (C) materially increases the benefits accruing to Participants under the Plan, (D) materially reduces the price at which shares of Common Stock may be issued or purchased under the Plan, (E) materially extends the term of the Plan, or (F) materially expands the types of Awards available for issuance under the Plan. Except as otherwise provided in the Plan or an Award Agreement, no amendment of the Plan will materially impair a Participants rights under an outstanding Award without the Participants written consent."
"(i) General. The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee of the Committee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the Committee or subcommittee, as applicable). Any delegation of administrative powers will be reflected in resolutions, not inconsistent with the provisions of the Plan, adopted from time to time by the Board or Committee (as applicable). The Board may retain the authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated."
"(ii) A maximum of 2,000,000 shares of Common Stock subject to Performance Stock Awards may be granted to any one Participant during any one calendar year (whether the grant, vesting or exercise is contingent upon the attainment during the Performance Period of the Performance Goals), except that the maximum number of shares of Common Stock under this paragraph will be 4,000,000 in the first year of a Participants employment."
"(iv) if an Option is a Nonstatutory Stock Option, by a net exercise arrangement pursuant to which the Company will reduce the number of shares of Common Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price; provided, however, that the Company will accept a cash or other payment from the Participant to the extent of any remaining balance of the aggregate exercise price not satisfied by such reduction in the number of whole shares to be issued. Shares of Common Stock will no longer be subject to an Option and will not be exercisable thereafter to the extent that (A)shares issuable upon exercise are used to pay the exercise price pursuant to the net exercise, (B) shares are delivered to the Participant as a result of such exercise, and (C)shares are withheld to satisfy tax withholding obligations; or"
"(l) Non-Exempt Employees. If an Option or SAR is granted to an Employee who is a non-exempt employee for purposes of the U.S. Fair Labor Standards Act of 1938, as amended, the Option or SAR will not be first exercisable for any shares of Common Stock until at least six months following the date of grant of the Option or SAR (although the Stock Award may vest prior to such date). Consistent with the provisions of the U.S. Worker Economic Opportunity"
"(iv) Additional Restrictions. At the time of the grant of a Restricted Stock Unit Award, the Board, as it deems appropriate, may impose such restrictions or conditions that delay the delivery of the shares of Common Stock (or their cash equivalent) subject to a Restricted Stock Unit Award to a time after the vesting of such Restricted Stock Unit Award."
"(c) No Obligation to Notify or Minimize Taxes. The Company will have no duty or obligation to any Participant to advise such holder as to the time or manner of exercising such Stock Award. Furthermore, the Company will have no duty or obligation to warn or otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The Company has no duty or obligation to minimize the tax consequences of an Award to the holder of such Award."
"(b) Corporate Action Constituting Grant of Stock Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument, certificate, or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise price, vesting schedule or number of shares) that are inconsistent with those in the Award Agreement or related grant documents as a result of a clerical error in the papering of the Award Agreement or related grant documents, the corporate records will control and the Participant will have no legally binding right to the incorrect term in the Award Agreement or related grant documents."
"(k) Compliance with Section409A of the Code. Unless otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be interpreted to the greatest extent possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section409A of the Code, and, to the extent not so exempt, in compliance with Section409A of the Code. If the Board determines that any Award granted hereunder is not exempt from and is therefore subject to Section409A of the Code, the Award Agreement evidencing such Award will incorporate the terms and conditions necessary to avoid the consequences specified in Section409A(a)(1) of the Code, and to the extent an Award Agreement is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement. Notwithstanding anything to the contrary in this Plan (and unless the Award Agreement specifically provides otherwise), if the shares of Common Stock are publicly traded, and if a Participant holding an Award that constitutes deferred compensation under Section409A of the Code is a specified employee for purposes of Section409A of the Code, no distribution or payment of any amount that is due because of a separation from service (as defined in Section409A of the Code without regard to alternative definitions thereunder) will be issued or paid before the date that is six months following the date of such Participants separation from service (as defined in Section409A of the Code without regard to alternative definitions thereunder) or, if earlier, the date of the Participants death, unless such distribution or payment can be made in a manner that complies with Section409A of the Code, and any amounts so deferred will be paid in a lump sum on the day after such six month period elapses, with the balance paid thereafter on the original schedule."
"(c) Transaction. The following provisions will apply to Stock Awards in the event of a Transaction unless otherwise provided in the Stock Award Agreement or any other written agreement between the Company or any Affiliate and the Participant or unless otherwise expressly provided by the Board at the time of grant of a Stock Award. In the event of a Transaction, then, notwithstanding any other provision of the Plan, the Board may take one or more of the following actions with respect to Stock Awards, contingent upon the closing or completion of the Transaction:"
"(d) Change in Control. A Stock Award may be subject to additional acceleration of vesting and exercisability upon or after a Change in Control as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written agreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur."
"(iii) there is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries to an Entity, more than fiftypercent(50%) of the combined voting power of the voting securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition, provided, however, that a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries will not constitute a Change in Control under this prong of the definition if the outstanding voting securities representing more than 50% of the combined voting power of the acquiring Entity or its parent are owned by the IPO Entities; or"
"(r) Disability means, with respect to a Participant, the inability of such Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months, as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and will be determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances."
"Aquantia Corp. (the Company), pursuant to its 2017 Equity Incentive Plan (the Plan), hereby grants to Optionholder an option to purchase the number of shares of the Companys Common Stock set forth below. This option is subject to all of the terms and conditions as set forth in this stock option grant notice (this Stock Option Grant Notice), in the Option Agreement, the Plan and the Notice of Exercise, all of which are attached hereto and incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Option Agreement will have the same definitions as in the Plan or the Option Agreement. If there is any conflict between the terms herein and the Plan, the terms of the Plan will control."
| | | | | | | | ---|---|---|---|---|---|---|---|--- | | | | Type of Grant: |  | IncentiveStockOption1 |  | NonstatutoryStockOption |  | |  | | | | Exercise Schedule: |  | Same as Vesting Schedule |  | |  | | | | | Vesting Schedule: |  | [ ] |  | | | |  | 
"(b) Provided that at the time of exercise the Common Stock is publicly traded, by delivery to the Company (either by actual delivery or attestation) of already-owned shares of Common Stock that are owned free and clear of any liens, claims, encumbrances or security interests, and that are valued at Fair Market Value on the date of exercise. Delivery for these purposes, in the sole discretion of the Company at the time you exercise your option, will include delivery to the Company of your attestation of ownership of such shares of Common Stock in a form approved by the Company. You may not exercise your option by delivery to the Company of Common Stock if doing so would violate the provisions of any law, regulation or agreement restricting the redemption of the Companys stock."
"(b) three (3)months after the termination of your Continuous Service for any reason other than Cause, your Disability, or your death (except as otherwise provided in Section8(d) below); provided, however, that if during any part of such three-month period your option is not exercisable solely because of the condition set forth in Section7 above relating to Securities Law Compliance, your option will not expire until the earlier of the Expiration Date or until it has been exercisable for an aggregate period of three (3)months after the termination of your Continuous Service; provided further, that if (i)you are a Non-Exempt Employee, (ii)your Continuous Service terminates within six (6)months after the Date of Grant, and (iii)you have vested in a portion of your option at the time of your termination of Continuous Service, your option will not expire until the earlier of (x)the later of (A)the date that is seven (7)months after the Date of Grant, and (B)the date that is three (3)months after the termination of your Continuous Service, and (y)the Expiration Date;"
"(a) You may exercise the vested portion of your option during its term by (i)delivering a Notice of Exercise (in a form designated by the Company) or completing such other documents and/or procedures designated by the Company for exercise and (ii)paying the exercise price and any applicable withholding taxes to the Companys Secretary, stock plan administrator, or such other person as the Company may designate, together with such additional documents as the Company may then require."
"17. OTHER DOCUMENTS. You hereby acknowledge receipt of and the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Plan prospectus. In addition, you acknowledge receipt of the Companys policy permitting certain individuals to sell shares only during certain window periods and the Companys insider trading policy, in effect from time to time. "
"| | ---|---|--- Vesting Schedule: |  | The Unvested Shares subject to this Award will vest and become Vested Shares in accordance with the vesting schedule below (each such vesting date specified below, a Vesting Date): | |  | Subject to the Participants Continuous Service through the applicable vesting date, [[] of the shares of Common Stock subject to this Award will vest and become Vested Shares on each of the first [] anniversaries following the Vesting Commencement Date]. | |  | In the event Participants Continuous Service terminates for any reason, all Unvested Shares as of the date of such termination of Continuous Service shall immediately and automatically be forfeited and returned to the Company without any payment of consideration therefor and without any required action by or notice to Participant. Additional Terms/Acknowledgements: The undersigned Participant acknowledges receipt of, and understands and agrees to, this Restricted Stock Award Grant Notice, the Restricted Stock Award Agreement and the Plan. Participant acknowledges and agrees that this Restricted Stock Award Grant Notice and the Restricted Stock Award Agreement may not be modified, amended or revised except as provided therein or in the Plan. Participant further acknowledges that as of the Date of Grant, this Restricted Stock Award Grant Notice, the Restricted Stock Award Agreement and the Plan set forth the entire understanding between Participant and the Company regarding the acquisition of stock in the Company and supersede all prior oral and written agreements, promises and/or representations on that subject with the exception of (i)equity awards previously granted and delivered to Participant, and (ii)any compensation recovery policy that is or may be adopted by the Company or is otherwise required by applicable law."
"(c) Depending on the withholding method, the Company and/or an Affiliate may withhold or account for Withholding Taxes by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case you may receive a refund of any over- withheld amount in cash and will have no entitlement to the Common Stock equivalent. In the event the Companys obligation to withhold arises prior to the delivery or release to you of Common Stock or it is determined after the delivery of Common Stock to you that the amount of the Companys withholding obligation was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount."
"7\. DIVIDENDS. You will receive no benefit or adjustment to your Award with respect to any cash dividend, stock dividend or other distribution that does not result from a Capitalization Adjustment; provided, however, that this sentence will not apply with respect to any shares of Common Stock that are delivered to you in connection with your Award after such shares have been delivered to you."
"appropriate (a reorganization). You further acknowledge and agree that such a reorganization could result in the termination of your Continuous Service, or the termination of Affiliate status of your employer and the loss of benefits available to you under this Award Agreement, including but not limited to, the termination of the right to continue vesting in the Award. You further acknowledge and agree that this Award Agreement, the Plan, the transactions contemplated hereunder and the vesting schedule set forth herein or any covenant of good faith and fair dealing that may be found implicit in any of them do not constitute an express or implied promise of continued engagement as an employee or consultant for the term of this Award Agreement, for any period, or at all, and will not interfere in any way with your right or the right of the Company or an Affiliate to terminate your Continuous Service at any time, with or without cause and with or without notice, and will not interfere in any way with the Companys right to conduct a reorganization."
"13\. UNSECURED OBLIGATION. Your Award is unfunded, and as a holder of a vested Award, you will be considered an unsecured creditor of the Company with respect to the Companys obligation, if any, to issue shares or other property pursuant to this Award Agreement. You will not have voting or any other rights as a stockholder of the Company with respect to the shares to be issued pursuant to this Award Agreement until such shares are issued to you pursuant to Section6 of this Award Agreement. Upon such issuance, you will obtain full voting and other rights as a stockholder of the Company. Nothing contained in this Award Agreement, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person."
"22\. ELECTRONIC DELIVERY AND ACCEPTANCE. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company and that such online or electronic participation shall have the same force and effect as documentation executed in written form."
"24\. COMPLIANCE WITH SECTION409A OF THE CODE. This Award is intended to comply with the short-term deferral rule set forth in Treasury Regulation Section1.409A-1(b)(4). Notwithstanding the foregoing, if it is determined that the Award fails to satisfy the requirements of the short-term deferral rule and is otherwise deferred compensation subject to Section409A, and if you are a Specified Employee (within the meaning set forth in Section409A(a)(2)(B)(i) of the Code) as of the date of your separation from service (within the meaning of Treasury Regulation Section1.409A-1(h) and without regard to any alternative definition thereunder), then the issuance of any shares that would otherwise be made upon the date of the separation from service or within the first six (6)months thereafter will not be made on the originally scheduled date(s) and will instead be issued in a lump sum on the earlier of: (i)the fifth business day following your death, or (ii)the date that is six (6)months and one day after the date of the separation from service, with the balance of the shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the shares is necessary to avoid the imposition of adverse taxation on you in respect of the shares under Section409A of the Code. Each installment of shares that vests is intended to constitute a separate payment for purposes of Treasury Regulation Section1.409A-2(b)(2)."
"2.Duties. The Executive shall work for the Employer in a full-time capacity. The Executive shall, during the term of this Agreement, have the duties, responsibilities, powers, and authority customarily associated with the positions of President and Chief Executive Officer. The Executive shall report to, and follow the direction of, the Board of Directors of the Employer (the Board). The Executive shall receive an interim appointment to the Board effective as of the Start Date and shall be nominated for reelection to the Board at the expiration of each term of office provided he is then the Chief Executive Officer of the Employer. The Executive agrees to serve as a member of the Board for each period for which he is so appointed or elected. In addition to, or in lieu of, the foregoing, the Executive also shall perform such other and related services and duties that are commensurate with his positions as may be assigned to him from time to time by the Board. The Executive shall diligently, competently, and faithfully perform all duties, and shall devote his entire business time, energy, attention, and skill to the performance of duties for the Employer or its affiliates and will use his best efforts to promote the interests of the Employer. Notwithstanding the foregoing, the Executive shall be permitted to (i) engage in charitable and community affairs, and (ii) make direct investments of any character in any non-competing business or businesses and to manage such investments (but not be involved in the day-to-day operations of any such business); provided, in each case, and in the aggregate, that such activities do not interfere with the performance of the Executives duties hereunder."
"3.Executive Loyalty. Except as otherwise permitted by Paragraph 2, the Executive shall devote all of his time, attention, knowledge, and skill solely and exclusively to the business and interests of the Employer, and the Employer shall be entitled to all benefits and profits arising from or incident to any and all work, services, and advice of the Executive. The Executive expressly agrees that during the term of this Agreement, he shall not engage, directly or indirectly, as a partner, officer, director, member, manager, stockholder, advisor, agent, employee, or in any other form or capacity, in any other business similar to that of the Employer."
"A. If the Executives employment terminates for any reason, the Executive shall be entitled to (i) his salary through his final date of active employment, (ii) any accrued but unused vacation pay, and (iii) any earned but unpaid bonus pursuant to Paragraph 5B above for the calendar year preceding the calendar year in which his employment terminates (which bonus shall be payable in accordance with Paragraph 5B above). The Executive also shall be entitled to any benefits"
"(ii)notwithstanding anything contained in any award agreement or plan to the contrary, (I) any then outstanding non-vested stock options, restricted stock or other equity or equity-based awards awarded pursuant to Paragraph 5C of this Agreement, whose vesting is not subject to performance-based conditions shall immediately vest on the Executives last day of employment, and (II) any then outstanding non-vested restricted stock unit or other equity or equity- based awards awarded pursuant to Paragraph 5C of this Agreement that are subject to performance-based vesting conditions that have not been satisfied as of the Executives last day of employment shall be forfeited; and"
"E. In the event that the Executives employment is terminated pursuant to Paragraph 6E of this Agreement, and the Executive complies with the release requirements set forth in Paragraph 7F below, in addition to the payments and benefits set forth in Paragraph 7A, any then outstanding equity or equity- based awards shall be treated in accordance with Paragraph 7C(ii) of this Agreement and any then outstanding stock options granted pursuant to the Option Agreement shall be treated in accordance with Paragraph 7B(iii) of this Agreement. After the Executive has given notice under Paragraph 6E of his intention to retire, if the Executives employment subsequently is terminated under Paragraph 6C or Paragraph 6D of this Agreement, the terms of the first sentence of this Paragraph 7E shall nevertheless govern the treatment of any then outstanding equity or equity-based awards and any then outstanding stock options granted pursuant to the Option Agreement."
"(a)The Participant may exercise this Option only by delivering an Option exercise notice (an Exercise Notice) in substantially the form of Appendix A attached hereto to the Companys Chief Financial Officer, indicating his or her election to purchase some or all of the Option Shares which have vested at the time of delivery of such Exercise Notice (which amount shall be specified in the Exercise Notice), accompanied by payment in full of the aggregate Exercise Price; provided that, such exercise shall in no event be effective before receipt by such officer of the Exercise Notice and the aggregate Exercise Price. Payment of the aggregate Exercise Price for the Option Shares elected to be purchased by the Participant may be made by one or more of the following methods:"
"(ii)if permitted by the Committee in its sole and absolute discretion, (y) through the delivery (or attestation to ownership) of shares of Stock with an aggregate Fair Market Value (as of the date such shares are delivered or attested to) equal to the aggregate Exercise Price and that have been purchased by the Participant on the open market or that have been held by the Participant for at least six (6) months and are not subject to restrictions under any plan of the Company, or (z) by the Participant delivering to the Company a properly executed Exercise Notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company in an amount equal to the aggregate Exercise Price; provided that, in the event the Participant chooses such payment procedure, the Participant and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure; or"
"(f)Integrated Agreement. This Option Agreement, the Notice, the Plan, and the Employment Agreement constitute the entire understanding and agreement between the Participant and the Company with respect to the subject matter contained herein and supersedes any prior agreements, understandings, restrictions, representations or warranties among the Participant and the Company with respect to such subject matter except as provided for herein. To the extent contemplated herein, the provisions of this Option Agreement shall survive any exercise of this Option and shall remain in full force and effect."
"Pursuant to the terms of the Notice of Grant of Stock Option dated ___________, ___ and the Stock Option Agreement granted pursuant to the Molina Healthcare, Inc. 2011 Equity Incentive Plan and entered into by Molina Healthcare, Inc. and _____________ (the Participant) on such date, I hereby exercise such Option by including herein or arranging for payment in the amount of $__________ representing the aggregate exercise price for _____________ shares of Molina Healthcare, Inc. common stock, all of which have vested in accordance with the Notice of Grant of Stock Option. I hereby authorize withholding or otherwise will make adequate provision for federal, state, and local tax withholding obligations of the Company, if any, that arise in connection with the Option."
"I acknowledge that the shares are being acquired in accordance with and subject to the terms, provisions and conditions of the Plan, the Notice of Grant of Stock Option and the Option Agreement, copies of which I have received and carefully read and understand, to all of which I hereby expressly assent."
"The Participant shall have no rights as a stockholder of the Corporation, no dividend rights and no voting rights with respect to the Performance Units and any shares of Common Stock underlying or issuable in respect of such Performance Units until such shares of Common Stock are actually issued to and held of record by the Participant. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance of the stock certificate."
"Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office to the attention of the Secretary, and to the Participant at the Participants last address reflected on the Corporations records, or at such other address as either party may hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Participant is no longer an employee of the Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly sealed envelope addressed as aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government."
"Forfeiture and Corporations Right to Recover Fair Market Value of Shares Received Pursuant to Performance Units. If, at any time, the Board or the Committee, as the case may be, in its sole discretion determines that any action or omission by Participant constituted (a) wrongdoing that contributed to (i) any material misstatement in or omission from any report or statement filed by the Corporation with the U.S. Securities and Exchange Commission or (ii) a statement, certification, cost report, claim for payment, or other filing made under Medicare or Medicaid that was false, fraudulent, or for an item or service not provided as claimed, (b) intentional or gross misconduct, (c) a breach of a fiduciary duty to the Corporation or a Subsidiary Corporation, (d) fraud or (e) non-compliance with the Corporations Code of Business Conduct and Ethics, policies or procedures to the material detriment of the Corporation, then in each such case, commencing with the first fiscal year of the Corporation during which such action or omission occurred, Participant shall forfeit (without any payment therefore) up to 100% of any Performance Units that have not been vested or settled and shall repay to the Corporation, upon notice to Participant by the Corporation, up to 100% of the Fair Market Value of the shares of Common Stock at the time such shares were delivered to the Participant pursuant to the Performance Units during and after such fiscal year. The Board or the Committee, as the case may be, shall determine in its sole discretion the date of occurrence of such action or omission, the percentage of the Performance Units that shall be forfeited and the percentage of the Fair Market Value of the shares of Common Stock delivered pursuant to the Performance Units that must be repaid to the Corporation."
"(a) If any Shares vest subsequent to any change in the number or character of the Common Stock of the Company through any stock dividend or other distribution, recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of shares or other securities of the Company, issuance of warrants or other rights to purchase shares of Common Stock or other securities of the Company or other similar corporate transaction or event such that an adjustment is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Agreement, then the Committee shall, in such manner as it may deem equitable, in its sole discretion, adjust any or all of the number and type of such Shares."
"The terms, provisions and agreements that are contained in this Agreement shall apply to, be binding upon, and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives and permitted successors and assigns, subject to the limitation on assignment expressly set forth herein. This Agreement shall have no force or effect unless it is duly executed and delivered by the Company."
"4. Covenant Not to Sue. The Executive agrees not to bring, file, charge, claim, sue or cause, assist, or permit to be brought, filed, charged or claimed any action, cause of action, or proceeding regarding or in any way related to any of the claims released in Section 3 hereof, and further agrees that this Release is, will constitute and may be pleaded as, a bar to any such claim, action, cause of action or proceeding. If the Executive files a charge or participates in an investigative proceeding of the EEOC or another governmental agency, or is otherwise made a party to any proceedings described in Section 3 hereof, the Executive will not seek and will not accept any personal equitable or monetary relief in connection with such charge or investigative or other proceeding; provided, however, that this Release does not limit the Executives right to receive an award for information provided to any governmental agencies under any whistleblower program. The Executive further understands that this Release does not limit his ability to communicate with any governmental agencies or otherwise participate in any investigation or proceeding that may be conducted by any governmental agencies, including providing documents or other information, without notice to the Employer."
"5. Non-Disclosure. The Executive agrees that he will keep the terms and amounts set forth in this Release completely confidential and will not disclose any information concerning this Releases terms and amounts to any person other than his attorney, accountant, tax advisor, or immediate family, until such time as the information in this Release is disclosed by the Employer as may be required by law."
"diskettes, compact disks, DVDs, electronic storage devices, and personal data assistants, and the contents of all such hardware, as well as any passwords or codes or instructions needed to operate any such hardware), computer software and programs, data, materials, papers, books, files, documents, records, policies, client and customer information and lists, marketing information, design information, specifications and plans, data base information and lists, mailing lists, notes, and any other property or information that the Executive has or had relating to the Employer or any of its subsidiaries or affiliates (whether those materials are in paper, electronic or computer-stored form or in any other form or medium), and (b) all documents and other property containing, summarizing, or describing any Confidential Information (as defined in the Employment Agreement), including all originals and copies. The Executive affirms that he has not retained any such property or information in any form, and will not give copies of such property or information or disclose their contents to any other person."
"(c) Mergers and Other Transactions. In the case of and subject to the consummation of a Sale Event, the parties thereto may cause the assumption or continuation of Awards theretofore granted by the successor entity, or the substitution of such Awards with new Awards of the successor entity or parent thereof, with appropriate adjustment as to the number and kind of shares and, if appropriate, the per share exercise prices, as such parties shall agree. To the extent the parties to such Sale Event do not provide for the assumption, continuation or substitution of Awards, upon the effective time of the Sale Event, the Plan and all outstanding Awards granted hereunder shall terminate. In such case, except as may be otherwise provided in the relevant Award Certificate, all Options and Stock Appreciation Rights that are not exercisable immediately prior to the effective time of the Sale Event shall become fully exercisable as of the effective time of the Sale Event, all other Awards with time-based vesting, conditions or restrictions shall become fully vested and nonforfeitable as of the effective time of the Sale Event, and all Awards with conditions and restrictions relating to the attainment of performance goals may become vested and nonforfeitable in connection with a Sale Event in the Administrators discretion or to the extent specified in the relevant Award Certificate. In the event of such termination, (i)the Company shall have the option (in its sole discretion) to make"
"(d) Exercisability; Rights of a Stockholder. Stock Options shall become exercisable at such time or times, whether or not in installments, as shall be determined by the Administrator at or after the grant date. The Administrator may at any time accelerate the exercisability of all or any portion of any Stock Option. An optionee shall have the rights of a stockholder only as to shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options."
"(a) Performance-Based Awards. The Administrator may grant one or more Performance-Based Awards in the form of a Restricted Stock Award, Restricted Stock Units, Performance Share Awards or Cash-Based Award payable upon the attainment of Performance Goals that are established by the Administrator and relate to one or more of the Performance Criteria, in each case on a specified date or dates or over any period or periods determined by the Administrator. The Administrator shall define in an objective fashion the manner of calculating the Performance Criteria it selects to use for any Performance Cycle. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may be expressed in terms of overall Company performance or the performance of a division, business unit, or an individual. Each Performance-Based Award shall comply with the provisions set forth below."
"(b) Termination. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section19 below, in writing after the Award is issued, a grantees rights in all Dividend Equivalent Rights shall automatically terminate upon the grantees termination of employment (or cessation of service relationship) with the Company and its Subsidiaries for any reason."
"(a) The Optionee may exercise this Stock Option only in the following manner: from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice to the Administrator of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice. This notice shall specify the number of Option Shares to be purchased."
"(c) Termination for Cause. If the Optionees employment terminates for Cause, any portion of this Stock Option outstanding on such date shall terminate immediately and be of no further force and effect. For purposes hereof, Cause shall mean, unless otherwise provided in an employment agreement between the Company and the Optionee, a determination by the Administrator that the Optionee shall be dismissed as a result of (i)any material breach by the Optionee of any agreement between the Optionee and the Company (including the Restrictive Covenant Agreement); (ii) the conviction of, indictment for or plea of nolo contendere by the Optionee to a felony or a crime involving moral turpitude; (iii)the Optionees material breach of material responsibilities to the Company or willful failure to comply with lawful directives of the Board or written policies of the Company; (iv)the Optionees provision of false information or misrepresentation of information used by the Company in hiring, evaluating or promoting the Optionee; (v)any material misconduct that seriously discredits or damages the Company or any of its affiliates; or (vi)willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionees duties to the Company."
"11\. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"(b) Termination Due to Disability. If the Optionees employment terminates by reason of the Optionees disability (as determined by the Administrator), any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of such termination of employment, may thereafter be exercised by the Optionee for a period of 12 months from the date of disability or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of disability shall terminate immediately and be of no further force or effect."
"(c) Termination for Cause. If the Optionees employment terminates for Cause, any portion of this Stock Option outstanding on such date shall terminate immediately and be of no further force and effect. For purposes hereof, Cause shall mean, unless otherwise provided in an employment agreement between the Company and the Optionee, a determination by the Administrator that the Optionee shall be dismissed as a result of (i)any material breach by the Optionee of any agreement between the Optionee and the Company (including the Restrictive Covenant Agreement); (ii) the conviction of, indictment for or plea of nolo contendere by the Optionee to a felony or a crime involving moral turpitude; (iii)the Optionees material breach of material responsibilities to the Company or willful failure to comply with lawful directives of the Board or written policies of the Company; (iv)the Optionees provision of false information or misrepresentation of information used by the Company in hiring, evaluating or promoting the Optionee; (v)any material misconduct that seriously discredits or damages the Company or any of its affiliates; or (vi)willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionees duties to the Company."
"5\. Transferability. This Agreement is personal to the Optionee, is non- assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution. This Stock Option is exercisable, during the Optionees lifetime, only by the Optionee, and thereafter, only by the Optionees legal representative or legatee."
"Payment of the purchase price for the Option Shares may be made by one or more of the following methods: (i)in cash, by certified or bank check or other instrument acceptable to the Administrator; (ii)through the delivery (or attestation to the ownership) of shares of Stock that have been purchased by the Optionee on the open market or that are beneficially owned by the Optionee and are not then subject to any restrictions under any Company plan and that otherwise satisfy any holding periods as may be required by the Administrator; (iii)by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the option purchase price, provided that in the event the Optionee chooses to pay the option purchase price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Administrator shall prescribe as a condition of such payment procedure; (iv)by a net exercise arrangement pursuant to which the Company will reduce the number of shares of Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price; or (v)a combination of (i), (ii), (iii) and (iv)above. Payment instruments will be received subject to collection."
"The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i)the Companys receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii)the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii)the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to."
"holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionees name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock."
"(c) Other Termination. If the Optionee ceases to be a Director for any reason other than the Optionees death or a termination for Cause, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date the Optionee ceased to be a Director, for a period of six months from the date the Optionee ceased to be a Director or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date the Optionee ceases to be a Director shall terminate immediately and be of no further force or effect."
"9\. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i)the Companys receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii)the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii)the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to."
"Relevant Companies to store and transmit such information in electronic form; and (iv)authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Optionee shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable law."
"9\. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"7\. Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. Except in the case where an election is made pursuant to Paragraph 8 below, the Company shall have the authority to cause the required minimum tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued or released by the transfer agent a number of shares of Stock with an aggregate Fair Market Value that would satisfy the minimum withholding amount due."
"12\. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"10\. Data Privacy Consent. In order to administer the Plan and this Agreement and to implement or structure future equity grants, the Company, its subsidiaries and affiliates and certain agents thereof (together, the Relevant Companies) may process any and all personal or professional data, including but not limited to Social Security or other identification number, home address and telephone number, date of birth and other information that is necessary or desirable for the administration of the Plan and/or this Agreement (the Relevant Information). By entering into this Agreement, the Grantee (i)authorizes the Company to collect, process, register and transfer to the Relevant Companies all Relevant Information; (ii)waives any privacy rights the Grantee may have with respect to the Relevant Information; (iii)authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv)"
"10. Conditions to Grant. The Participant shall execute and become a party to a Stockholders Agreement and Sale Participation Agreement, and any Shares issued under this Agreement shall be subject to the terms and conditions of such agreement in accordance with their respective terms; provided, however, that the Participant acknowledges that references to employment in the Stockholders Agreement shall refer to the Participants Service."
"(pp) Service Recipient means, with respect to a Participant holding a given Award, the member of the Company Group by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing, services, as applicable."
"(f) Board Authority. Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer the Plan with respect to any Awards. Any such actions by the Board shall be subject to the applicable rules of the securities exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. In any such case, the Board shall have all the authority granted to the Committee under the Plan."
"(a) General. Each Option granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for each Participant. Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the applicable Award Agreement expressly states that the Option is intended to be an Incentive Stock Option. Incentive Stock Options shall be granted only to Eligible Persons who are employees of a member of the Company Group, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless the Plan has been approved by the stockholders of the Company in a manner intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code; provided, that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to, and comply with, such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option appropriately granted under the Plan."
"(a) General. Each SAR granted under the Plan shall be evidenced by an Award Agreement. Each SAR so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award SARs to Eligible Persons independent of any Option."
"(i) A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee; provided, however, that notwithstanding any such vesting dates or events, the Committee may, in its sole discretion, accelerate the vesting of any SAR at any time and for any reason."
"(c) Other Requirements. Prior to any payment or adjustment contemplated under this Section 12, the Committee may require a Participant to (i) represent and warrant as to the unencumbered title to the Participants Awards; (ii) bear such Participants pro rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Common Stock, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code; and (iii) deliver customary transfer documentation as reasonably determined by the Committee."
"(b) Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of the Plan and any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after a Participants Termination); provided, that, other than pursuant to Section 12, any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant."
"(i) Each Award shall be exercisable only by such Participant to whom such Award was granted during the Participants lifetime, or, if permissible under applicable law, by the Participants legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant (unless such transfer is specifically required pursuant to a domestic relations order or by applicable law) other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against any member of the Company Group; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance."
"(ii) Without limiting the foregoing, the Committee may (but is not obligated to), in its sole discretion, permit or require a Participant to satisfy, all or any portion of the minimum income, employment and/or other applicable taxes that are statutorily required to be withheld with respect to an Award by (A) the delivery of shares of Common Stock (which are not subject to any pledge or other security interest) that have been both held by the Participant and vested for at least six (6) months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment under applicable accounting standards) having an aggregate Fair Market Value equal to such minimum statutorily required withholding liability (or portion thereof); or (B) having the Company withhold from the shares of Common Stock otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant upon the grant, exercise, vesting or settlement of the Award, as applicable, a number of shares of Common Stock with an aggregate Fair Market Value equal to an amount, subject to clause (iii) below, not in excess of such minimum statutorily required withholding liability (or portion thereof)."
"(iii) The Committee, subject to its having considered the applicable accounting impact of any such determination, has full discretion to allow Participants to satisfy, in whole or in part, any additional income, employment and/or other applicable taxes payable by them with respect to an Award by electing to have the Company withhold from the shares of Common Stock otherwise issuable or deliverable to, or that would otherwise be retained by, a Participant upon the grant, exercise, vesting or settlement of the Award, as applicable, shares of Common Stock having an aggregate Fair Market Value that is greater than the applicable minimum required statutory withholding liability (but such withholding may in no event be in excess of the maximum statutory withholding amount(s) in a Participants relevant tax jurisdictions)."
"(f) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of any member of the Company Group, or other Person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committees determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Service Recipient or any other member of the Company Group, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Service Recipient or any other member of the Company Group may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award Agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award Agreement, except to the extent of any provision to the contrary in any written employment contract or other agreement between the Service Recipient and/or any member of the Company Group and the Participant, whether any such agreement is executed before, on or after the Date of Grant."
"(i) Notwithstanding any provision of the Plan to the contrary, it is intended that the provisions of the Plan comply with Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Plan (including any taxes and penalties under Section 409A of the Code), and neither the Service Recipient nor any other member of the Company Group shall have any obligation to indemnify or otherwise hold such Participant (or any beneficiary) harmless from any or all of such taxes or penalties. With respect to any Award that is considered deferred compensation subject to Section 409A of the Code, references in the Plan to termination of employment (and substantially similar phrases) shall mean separation from service within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as a separate payment."
"(iii) Unless otherwise provided by the Committee in an Award Agreement or otherwise, in the event that the timing of payments in respect of any Award (that would otherwise be considered deferred compensation subject to Section 409A of the Code) would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code; or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of Disability pursuant to Section 409A of the Code."
2. Forfeiture Restrictions Lapse Schedule. All Restricted Shares awarded pursuant to this Agreement are subject to forfeiture back to Company as may be provided in Section 3 (Forfeiture Restrictions) subject to the Forfeiture Restrictions lapsing in accordance with the vesting schedule set forth on the signature page to this agreement (Vesting Schedule).
"(ii) Termination of Employment By Company For Cause or By Participant Without Good Reason. Upon the termination of Participants employment by Company for Cause or by Participant without Good Reason, any Restricted Shares that remain subject to the Forfeiture Restrictions at the time of termination of employment shall be immediately forfeited and cancelled."
"Vesting Schedule: Subject to Participants Continuous Service on each vesting date, the Award shall vest in accordance with the following vesting schedule: with respect to []% of the Award shares when Participant completes [] of Continuous Service after the Vesting Commencement Date, and an additional []% of the Award shares on each full [] of Continuous Service thereafter; provided, that no portion of the Award will vest unless and until the Performance Goal has been achieved during the applicable time period specified below. When the Performance Goal is achieved, the Award shall vest immediately as to the number of Shares for which the Participants Continuous Service has already satisfied the Vesting Schedule and will thereafter continue to vest based on Continuous Service in accordance with the Vesting Schedule."
"(a) In the event your Continuous Service is involuntarily terminated by the Company without Cause, all Unvested Shares subject to your Award shall be cancelled and reacquired for no consideration effective as of the date that occurs two (2)months following the termination date unless the Unvested Shares become vested pursuant to the Vesting Acceleration provisions set forth in the Grant Notice during this two (2)-month period. During such period, the Unvested Shares will remain outstanding but you will accrue no additional vesting for any reason except application of the Vesting Acceleration provisions set forth in the Grant Notice."
"13\. NOTICES. Any notice or request required or permitted hereunder shall be given in writing to each of the other parties hereto and shall be deemed effectively given on the earlier of (i)the date of personal delivery, including delivery by express courier, or delivery via electronic means, or (ii)the date that is five (5)days after deposit in the United States Post Office (whether or not actually received by the addressee), by registered or certified mail with postage and fees prepaid, addressed at the following addresses, or at"
"17\. SEVERABILITY. If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid."
"2.Effective Date; Duration. The Plan shall be effective as of the date on which the Plan is approved by the shareholders of the Company (the Effective Date). The expiration date of the Plan, on and after which date no Awards may be granted, shall be the tenth anniversary of the Effective Date; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards. "
"(f)Cause in the case of a particular Award, unless the applicable Award agreement states otherwise, (i)shall have the meaning given such term in any employment, consulting, change-in-control, severance or any other agreement between the Participant and the Company or an Affiliate in effect at the time of such termination or (ii)if cause or term of similar import is not defined or, in the absence of, any such employment, consulting, change-in- control, severance or any other agreement, means the Participants (A)willful misconduct or gross neglect of the Participants duties; (B)having engaged in conduct harmful (whether financially, reputationally or otherwise) to the Company or an Affiliate; (C)failure or refusal to perform the Participants duties; (D)conviction of, or guilty or no contest plea to, a felony or any crime involving dishonesty or moral turpitude; (E)willful violation of the written policies of the Company or an Affiliate; (F)misappropriation or misuse of Company or Affiliate funds or property or other act of personal dishonesty in connection with the Participants employment; or (G)willful breach of fiduciary duty. The determination of whether Cause exists shall be made by the Committee in its sole discretion."
"(p) Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto."
"(b)Strike Price. The strike price (Strike Price) per share of Common Stock for each SAR shall not be less than 100% of the Fair Market Value of such share, determined as of the date of grant; provided, however, that a SAR granted in tandem with (or in substitution for) an Option previously granted shall have a Strike Price equal to the Exercise Price of the corresponding Option. Any modification to the Strike Price of an outstanding SAR shall be subject to the prohibition on repricing set forth in Section 14(b)."
"(e)Payment. Upon the exercise of a SAR, the Company shall pay to the holder thereof an amount equal to the number of shares subject to the SAR that are being exercised multiplied by the excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over the Strike Price, less an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions and any other tax-related items required to be withheld. The Company shall pay such amount in cash, in shares of Common Stock valued at Fair Market Value as determined on the date of exercise, or any combination thereof, as determined by the Committee. Any fractional shares of Common Stock shall be settled in cash."
"for equity accounting treatment), (iii)the Committee takes any other action that is considered a repricing for purposes of the shareholder approval rules of the applicable securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or (iv)the Committee cancels any outstanding Option or SAR that has a per-share Exercise Price or Strike Price (as applicable) at or above the Fair Market Value of a share of Common Stock on the date of cancellation, and pays any consideration to the holder thereof, whether in cash, securities, or other property, or any combination thereof, then, in the case of the immediately preceding clauses (i)through (iv), any such action shall not be effective without shareholder approval."
"(ii)Notwithstanding anything in the Plan to the contrary, if the Participant is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments or deliveries in respect of any Awards that are deferred compensation subject to Section 409A of the Code shall be made to such Participant prior to the date that is six months after the date of"
"(i)prior to the first shareholder meeting at which directors are to be elected that occurs in calendar year [2021], or such earlier time as required under applicable Treasury Regulations, and (ii)thereafter not later than every five years in accordance with applicable Treasury Regulations. Nothing in this subsection, however, shall affect the validity of Awards granted after such time if such shareholder approval has not been obtained."
"(y)No Interference. The existence of the Plan, any Award Agreement, and the Awards granted hereunder shall not affect or restrict in any way the right or power of the Company, the Board, the Committee, or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or other change in the Companys capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior preference stocks whose rights are superior to or affect the Common Shares or the rights thereof or that are convertible into or exchangeable for Common Shares, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise."
"(c)Restrictions. Restricted Shares may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein or in the Restricted Stock Award Agreement. Except as may otherwise be provided by the Administrator either in the Award Agreement or, subject to Section18 below, in writing after the Award is issued, if a grantees employment (or other service relationship) with the Company and its Subsidiaries or Affiliates terminates for any reason, any Restricted Shares that have not vested at the time of termination shall automatically and without any requirement of notice to such grantee from or other action by or on behalf of, the Company be deemed to have been reacquired by the Company at its original purchase price (if any) from such grantee or such grantees legal representative simultaneously with such termination of employment (or other service relationship), and thereafter shall cease to represent any ownership of the Company by the"
"Grant of Cash-Based Awards. The Administrator may grant Cash-Based Awards under the Plan. A Cash-Based Award is an Award that entitles the grantee to a payment in cash upon the attainment of specified Performance Goals. The Administrator shall determine the maximum duration of the Cash-Based Award, the amount of cash to which the Cash-Based Award pertains, the conditions upon which the Cash-Based Award shall become vested or payable, and such other provisions as the Administrator shall determine. Each Cash-Based Award shall specify a cash-denominated payment amount, formula or payment ranges as determined by the Administrator. Payment, if any, with respect to a Cash-Based Award shall be made in accordance with the terms of the Award and may be made in cash."
"(a)Nature of Performance Share Awards. The Administrator may grant Performance Share Awards under the Plan. A Performance Share Award is an Award entitling the grantee to receive shares of Stock upon the attainment of performance goals. The Administrator shall determine whether and to whom Performance Share Awards shall be granted, the performance goals, the periods during which performance is to be measured, which may not be less than one year except in the case of a Sale Event, and such other limitations and conditions as the Administrator shall determine."
"(c)Termination. Except as may otherwise be provided by the Administrator either in the Award Agreement or, subject to Section18 below, in writing after the Award is issued, a grantees rights in all Performance Share Awards shall automatically terminate upon the grantees termination of employment (or cessation of service relationship) with the Company and its Subsidiaries or Affiliates for any reason."
"(a)Payment by Grantee. Each grantee shall, no later than the date as of which the value of an Award or of any Stock or other amounts received thereunder first becomes subject to tax, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any Federal, state, local or foreign income taxes or social insurance contributions of any kind required by law to be withheld by the Company with respect to such income. The Company and its Subsidiaries or Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the grantee. The Companys obligation to deliver evidence of book entry (or stock certificates) to any grantee is subject to and conditioned on tax withholding obligations being satisfied by the grantee."
"To the extent that any Award is determined to constitute nonqualified deferred compensation within the meaning of Section 409A (a 409A Award), the Award shall be subject to such additional rules and requirements as specified by the Administrator from time to time in order to comply with Section 409A. In this regard, if any amount under a 409A Award is payable upon a separation from service (within the meaning of Section 409A) to a grantee who is then considered a specified employee (within the meaning of Section 409A), then no such payment shall be made prior to the date that is the earlier of (i)six months and one day after the grantees separation from service, or (ii)the grantees death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A. Further, the settlement of any such Award may not be accelerated except to the extent permitted by Section 409A."
"11.Governing Law and Venue. This Stock Option and the provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of law provisions. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of San Francisco, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. "
"1.Exercisability Schedule. Except as set forth below, and subject to the discretion of the Administrator to accelerate the exercisability schedule above, this Stock Option shall be vested and exercisable as provided above in Vesting Schedule. Once vested and exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date, subject to the provisions hereof and of the Plan. "
"Federal, state and local taxes required by law to be withheld from the Optionee on account of such event along with any applicable third-party commission; provided, however, that in the event that this method is unavailable for any reason, the Optionee will be required to satisfy his or her tax withholding obligations with respect to this Stock Option in another manner permitted by the Plan and permitted by the Company. The Company shall use the proceeds from such sale to satisfy the Optionees tax withholding obligation."
"(j)no claim or entitlement to compensation or damages shall arise from forfeiture of the Stock Options resulting from the termination of the Optionees employment or other service relationship (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Optionee is employed or the terms of the Optionees employment agreement, if any), and in consideration of the grant of the Stock Options, the Optionee agrees not to institute any claim against the Company, the Employer or any other Subsidiary;"
"16.Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Optionee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. "
 |  |  | The Optionee agrees that any liability for Employer NICs that may arise in connection with or pursuant to the exercise of the option (and the acquisition of shares) or other taxable events in connection with the option and/or the Optionees participation in the Plan will be transferred to the Optionee; ---|---|---|--- 
"A.The individual who has obtained authorised access to this Election (the Employee), who is employed by a UK company listed in the attached Schedule (the Employer) and who is eligible to receive stock options and/or restricted stock units (Awards) pursuant to the Okta, Inc. 2017 Equity Incentive Plan (the Plan), and"
"2. | The Election ---|--- The Employee and the Company jointly elect that the entire liability of the Employer to pay the Employers Liability on the Chargeable Event is hereby transferred to the Employee. The Employee understands that, by signing or electronically accepting this Election, he or she will become personally liable for the Employers Liability covered by this Election. This Election is made in accordance with paragraph 3B(1) of Schedule 1 of the SSCBA."
"11.Tax Withholding.In the event that the Company is required to withhold taxes from the Grantee for taxable compensation relating to the issuance of shares of Stock in connection with this Award, unless otherwise approved by the Company, the Company shall cause its transfer agent or any manager of Plan benefits to sell from the number of shares of Stock to be issued to the Grantee, the number of shares of Stock necessary to satisfy the Federal, state and local taxes required by law to be withheld from the Grantee on account of such event along with any applicable third-party commission; provided, however, that in the event that this method is unavailable for any reason, the Grantee will be required to satisfy his or her tax withholding obligations with respect to this Award in another manner permitted by the Plan and permitted by the Company. The Company shall use the proceeds from such sale to satisfy the Grantees tax withholding obligation. "
"3.Termination of Employment. If the Grantees employment with the Company and its Subsidiaries terminates for any reason (including death or disability) prior to the satisfaction of the vesting conditions set forth in Paragraph 2 above, any Restricted Stock Units that have not vested as of such date shall automatically and without notice terminate and be forfeited, and neither the Grantee nor any of his or her successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such unvested Restricted Stock Units. "
"| | ---|---|--- Name of Grantee: |  | NAME | No. of Restricted Stock Units: |  | NUMBER | Grant Date: |  | DATE | Vesting Commencement Date: |  | DATE | Vesting Schedule: |  | [] By signing below, the Grantee and the Company agree that this award is granted under, and governed by the terms and conditions of, the 2017 Equity Incentive Plan and the Restricted Stock Unit Agreement (the Agreement). Both of these documents are attached to, and made a part of, this Notice of Restricted Stock Unit Grant. Electronic acceptance of this Agreement pursuant to the Companys instructions to the Grantee (including through an online acceptance process) is acceptable."
"If the obligation for Tax-Related Items is satisfied by withholding in shares of Stock, for tax purposes, the Grantee is deemed to have been issued the full number of shares of Stock subject to the vested Restricted Stock Units, notwithstanding that a number of the shares of Stock are held back solely for the purpose of paying the Tax-Related Items."
"8.No Obligation to Continue Employment. The grant of the Award shall not create a right to employment or be interpreted as forming or amending an employment or service contract with either the Company, the Employer or any other Subsidiary. Moreover, the Employer is not obligated by or as a result of the Plan or this Agreement to continue the Grantee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Employer to terminate the employment of the Grantee at any time. "
"(i)unless otherwise agreed with the Company, the Restricted Stock Units and the shares of Stock subject to the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the services the Grantee may provide as a director of a Subsidiary; and"
"The Grantee understands that the Company and the Employer may hold certain personal information about the Grantee, including, but not limited to, the Grantees name, home address, email address and telephone number, date of birth, social insurance number, passport or other identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Restricted Stock Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in the Grantees favor, for the exclusive purpose of implementing, administering and managing the Plan."
"The Grantee understands that Data will be transferred to a broker or stock plan service provider selected by the Company, which may be assisting the Company (presently or in the future) with the implementation, administration and management of the Plan. The Grantee understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the Grantees country. The Grantee understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Grantee authorizes the Company, its designated broker or stock plan service provider (if any) and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing his or her participation in the Plan. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage the Grantees participation in the Plan. The Grantee understands that, he or she may, at any time, view Data, request information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, the Grantee understands that he or she is providing the consents herein on a purely voluntary basis. If the Grantee does not consent, or if the Grantee later seeks to revoke his or her consent, his or her employment status or service with the Employer will not be affected; the only consequence of refusing or withdrawing the Grantees consent is that the Company would not be able to grant Restricted Stock Units or other equity awards to the Grantee or administer or maintain such awards. Therefore, the Grantee understands that refusing or withdrawing his or her consent may affect the Grantees ability to participate in the Plan. For more information on the consequences of the Grantees refusal to consent or withdrawal of consent, the Grantee understands that he or she may contact his or her local human resources representative."
"13.Insider Trading/Market Abuse Restrictions. Depending on the Grantees country, the Grantee may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect the Grantees ability to acquire, sell or attempt to sell shares of Stock or rights to Stock (e.g., Restricted Stock Units) under the Plan during such times as the Grantee is considered to have inside information regarding the Company (as defined by the laws in the applicable jurisdiction or the Grantees country). Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Grantee is responsible for ensuring the Grantees compliance with any applicable restrictions and the Grantee should speak with his or her personal legal advisor on this matter. "
"17.Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. "
"Without limitation to Paragraph 6 of this Agreement, the Grantee agrees that the Grantee is liable for all Tax-Related Items and hereby covenants to pay all such Tax-Related Items as and when requested by the Company or the Employer or by HMRC (or any other tax authority or any other relevant authority). The Grantee also agrees to indemnify and keep indemnified the Company and the Employer against any taxes that they are required to pay or withhold on the Grantees behalf or have paid or will pay to HMRC (or any other tax authority or any other relevant authority)."
"9. Not an Employment Contract. This Award will not confer on the Grantee any right with respect to the continuance of employment or other service to the Company or any Company Affiliate, nor will it interfere in any way with any right the Company or any Company Affiliate would otherwise have to terminate or modify the terms of such Grantees employment or other service at any time."
"(vii) voluntarily ceases to be an employee due to a Termination for Good Reason following a Change in Control, the number of RSs covered by this Agreement, and any dividend equivalents with respect thereto, shall immediately vest (without proration based on the portion of the vesting period elapsed since the most recent Vesting Date (or since the date of grant, in the case of a termination of employment prior to a Vesting Date) prior to such termination) and shall be paid in cash in accordance with Section22(f) of the Plan at the earliest time set forth in Section22(c) of the Plan that will not trigger a tax or penalty under Section409A of the Code, as determined by the Committee. Such vesting shall be contingent, at the discretion of the Company, upon the Employee executing a general release and which may include an agreement with respect to engagement in detrimental activity, in a form acceptable to the Company;"
"(b) Cause. Cause means (i)a violation of any of the rules, policies, procedures or guidelines of the Employer, including but not limited to the Companys Business Ethics Policy and the Proprietary Information and Conflict of Interest Agreement (ii)any conduct which qualifies for immediate discharge under the Employers Human Resource Policies as in effect from time to time (iii)rendering services to a firm which engages, or engaging directly or indirectly, in any business that is competitive with the Employer, or represents a conflict of interest with the interests of the Employer; (iv)conviction of, or entering a guilty plea with respect to, a crime whether or not connected with the Employer; or (v)any other conduct determined to be injurious, detrimental or prejudicial to any interest of the Employer."
"(e) Indemnification. Neither the Board nor the Administrator, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including,"
"(e) Method of Exercise. Stock Options may be exercised in whole or in part, by giving written or electronic notice of exercise to the Company, specifying the number of shares to be purchased. Payment of the purchase price may be made by one or more of the following methods except to the extent otherwise provided in the Option Award Certificate:"
"(c) Payment of Performance-Based Awards. Following the completion of a Performance Cycle, the Administrator shall meet to review and certify in writing whether, and to what extent, the Performance Goals for the Performance Cycle have been achieved and, if so, to also calculate and certify in writing the amount of the Performance-Based Awards earned for the Performance Cycle. The Administrator shall then determine the actual size of each Covered Employees Performance-Based Award."
"Appreciation Rights in exchange for cash or other Awards. To the extent required under the rulesof any securities exchange or market system on which the Stock is listed, to the extent determined by the Administrator to be required by the Code to ensure that Incentive Stock Options granted under the Plan are qualified under Section422 of the Code, or to ensure that compensation earned under Awards qualifies as performance-based compensation under Section162(m)of the Code, Plan amendments shall be subject to approval by the Company stockholders entitled to vote at a meeting of stockholders. Nothing in this Section18 shall limit the Administrators authority to take any action permitted pursuant to Section3(d)or 3(e)."
"(b) Delivery of Stock Certificates. Stock certificates to grantees under this Plan shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have mailed such certificates in the United States mail, addressed to the grantee, at the grantees last known address on file with the Company. Uncertificated Stock shall be deemed delivered for all purposes when the Company or a Stock transfer agent of the Company shall have given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed to the grantee, at the grantees last known address on file with the Company, notice of issuance and recorded the issuance in its records (which may include electronic book entry records). Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless and until the Administrator has determined, with advice of counsel (to the extent the Administrator deems such advice necessary or advisable), that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed, quoted or traded. All Stock certificates delivered pursuant to the Plan shall be subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or advisable to comply with federal, state or foreign jurisdiction, securities or other laws, rulesand quotation system on which the Stock is listed, quoted or traded. The Administrator may place legends on any Stock certificate to reference restrictions applicable to the Stock. In addition to the terms and conditions provided herein, the Administrator may require that an individual make such reasonable covenants, agreements, and representations as the Administrator, in its discretion, deems necessary or advisable in order to comply with any"
"(d) Other Compensation Arrangements; No Employment Rights. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, including trusts, and such arrangements may be either generally applicable or applicable only in specific cases. The adoption of this Plan and the grant of Awards do not confer upon any employee any right to continued employment with the Company or any Subsidiary."
"(d) Other Termination. If the Optionees employment terminates for any reason other than the Optionees death, the Optionees disability, or Cause, and unless otherwise determined by the Administrator, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date of termination, for a period of three months from the date of termination or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of termination shall terminate immediately and be of no further force or effect."
"4. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section2(b)of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein."
"The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i)the Companys receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii)the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii)the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to."
"(b) Termination Due to Disability. If the Optionees employment terminates by reason of the Optionees disability (as determined by the Administrator), any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of such termination of employment, may thereafter be exercised by the Optionee for a period of 12 months from the date of disability or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of disability shall terminate immediately and be of no further force or effect."
"4. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section2(b)of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein."
"9. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"3. Termination as Consultant. If the Optionee ceases to be a Consultant to the Company or a Subsidiary for any reason, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date the Optionee ceased to provide services, for a period of three months from the date the Optionee ceased to provide services or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date the Optionee ceases to be a Consultant to the Company or a Subsidiary shall terminate immediately and be of no further force or effect."
"7. Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. Except in the case where an election is made pursuant to Paragraph 8 below, the Company shall have the authority to cause the tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued or released by the transfer agent a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due; provided, however, that to the extent necessary to avoid adverse accounting treatment, such share withholding shall not exceed the minimum required tax withholding obligation."
"12. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing."
"1. Restrictions on Transfer of Award. This Award may not be sold, transferred, pledged, assigned or otherwise encumbered or disposed of by the Grantee, and any shares of Stock issuable with respect to the Award may not be sold, transferred, pledged, assigned or otherwise encumbered or disposed of until (i)the Restricted Stock Units have vested as provided in Paragraph 2 of this Agreement and (ii)shares of Stock have been issued to the Grantee in accordance with the terms of the Plan and this Agreement."
"2\. Delivery Delay. The delivery of any certificate representing the Shares may be postponed by the Company for such period as may be required for it to comply with any applicable foreign, federal, state or provincial securities law, or any national securities exchange listing requirements and the Company is not obligated to issue or deliver any securities if, in the opinion of counsel for the Company, the issuance of such Shares shall constitute a violation by the Participant or the Company of any provisions of any applicable foreign, federal, state or provincial law or of any regulations of any governmental authority or any national securities exchange."
"5\. Withholding of Taxes. The Company shall have the right to deduct from any payment to be made pursuant to this Agreement and the Plan, or to otherwise require, prior to the issuance or delivery of any shares of Common Stock, payment by the Participant of, any federal, state or local taxes required by law to be withheld. Unless otherwise agreed to in writing by the Participant and the Company, or pursuant to the establishment by the Plan Administrator of an alternate procedure, (i)if the Participant is an officer under Section16 of the Exchange Act at the time of grant, required withholding will be implemented through a net settlement of shares or (ii)if the Participant is not an officer under Section16 of the Exchange Act at the time of grant, required withholding will be required to be implemented through the Participant executing a sell to cover transaction through a broker designated or approved by the Company."
"1. Grant of Awards. In accordance with the Plan, and effective as of the date of this Agreement (the Date of Grant), the Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, an award of _____________________ (______) shares of Common Stock (the Restricted Stock Award)."
"6\. Transferability. The Restricted Stock may not, at any time prior to becoming vested, be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance."
"11\. Entire Agreement. This Award Agreement together with the Plan, as either of the foregoing may be amended or supplemented in accordance with their terms, constitute the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and therein and supersedes all prior communications, representations and negotiations in respect thereto."
"7.Restricted Stock Award Agreement Subject to Plan. This Restricted Stock Award Agreement is made pursuant to all of the provisions of the Plan, which is incorporated herein by this reference, and is intended, and shall be interpreted in a manner, to comply therewith. In the event of any conflict between the provisions of this Restricted Stock Award Agreement and the provisions of the Plan, the provisions of this Restricted Stock Award Agreement shall govern."
" 1Plan. The Award is subject to all of the terms and conditions set forth in the Plan and this Award Agreement, and all capitalized terms not otherwise defined in this Award Agreement have the respective meaning of such terms as defined in the Plan. If a determination is made that any term or condition set forth in this Award Agreement is inconsistent with the Plan, the Plan will control. A copy of the Plan will be made available to Grantee upon written request to the Secretary of the Company."
"(g) Cause means, in the case of a particular Award, unless the applicable Award Agreement states otherwise, a good faith determination of the Committee or its designee that (i) there is cause to terminate a Participants service as a non-employee director of the Board, as defined in and in accordance with any consulting or other agreement between the Participant and any member of the Company Group or an Affiliate in effect at the time of such termination or (ii) in the absence of any such agreement (or the absence of any definition of Cause contained therein), any of the following has occurred with respect to a Participant: (A) such Participant has failed to reasonably perform his or her duties to any member of the Company Group, or has failed to follow the lawful instructions of the Board, in each case other than as a result of his or her incapacity due to physical or mental illness or injury, in a manner that could reasonably be expected to result in harm (whether financially, reputationally or otherwise) to any member of the Company Group or an Affiliate, following notice by the Company Group or"
"(o) Disability means, unless in the case of a particular Award the applicable Award Agreement states otherwise, the Company or an Affiliate having cause to terminate a Participants service on account of disability, as defined in any then-existing consulting or other similar agreement between the Participant and the Company or an Affiliate or, in the absence of such an agreement (or the absence of any definition of Disability contained therein), the complete and permanent inability by reason of illness or accident to perform the duties of the occupation at which a Participant was employed or served when such disability commenced.Any determination of whether Disability exists shall be made by the Committee (or its designee) in its sole discretion."
"(t) Fair Market Value means, on a given date, (i) if the Common Stock is listed on a national securities exchange, the closing sales price of the Common Stock reported on the primary exchange on which the Common Stock is listed and traded on such date, or, if there are no such sales on that date, then on the last preceding date on which such sales were reported; (ii) if the Common Stock is not listed on any national securities exchange but is quoted in an inter-dealer quotation system on a last sale basis, the average between the closing bid price and ask price reported on such date, or, if there is no such sale on that date, then on the last preceding date on which a sale was reported; or (iii) if the Common Stock is not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last sale basis, the amount determined by the Committee in good faith to be the fair market value of the Common Stock."
"(y) Other Equity-Based Award means an Award that is not an Option, Stock Appreciation Right, share of Restricted Stock, or Restricted Stock Unit, that is granted under Section 10 of the Plan and is (i) payable by delivery of Common Stock, and/or (ii) measured by reference to the value of Common Stock."
"(d) Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan, any Award or any Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all Persons, including, without limitation, any member of the Company Group, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company."
"(i) Options shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee. Options shall expire upon a date determined by the Committee, not to exceed ten (10) years from the Date of Grant (the Option Period); provided, that if the Option Period would expire at a time when trading in the shares of Common Stock is prohibited by the Companys insider trading policy (or Company- imposed blackout period), then the Option Period shall be automatically extended until the thirtieth (30th) day following the expiration of such prohibition."
"claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award.There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards.The terms and conditions of Awards and the Committees determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated.Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of any other member of the Company Group, nor shall it be construed as giving any Participant any rights to continued service on the Board.The Participants service as a member of the Board may be terminated free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award Agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award Agreement, except to the extent of any provision to the contrary in any written services contract or other agreement between any member of the Company Group and the Participant, whether any such agreement is executed before, on or after the Date of Grant."
"(u) Right of Offset.The Company will have the right to offset against its obligation to deliver shares of Common Stock (or other property or cash) under the Plan or any Award Agreement any outstanding amounts that the Participant then owes to any member of the Company Group and any amounts the Committee otherwise deems appropriate pursuant to any tax equalization policy or agreement.Notwithstanding the foregoing, if an Award is deferred compensation subject to Section 409A of the Code, the Committee will have no right to offset against its obligation to deliver shares of Common Stock (or other property or cash) under the Plan or any Award Agreement if such offset could subject the Participant to the additional tax imposed under Section 409A of the Code in respect of an outstanding Award."
"Performance Criteria means the criteria that the Administrator selects for purposes of establishing the Performance Goal or Performance Goals for an individual for a Performance Cycle. The Performance Criteria (which shall be applicable to the organizational level specified by the Administrator, including, but not limited to, the Company or a unit, division, group, or Subsidiary of the Company) that will be used to establish Performance Goals are limited to the following: total shareholder return, earnings before interest, taxes, depreciation and amortization, net income (loss) (either before or after interest, taxes, depreciation and/or amortization), changes in the market price of the Stock, economic value-added, funds from operations or similar measure, sales or revenue, developmental, clinical or regulatory milestones, acquisitions or strategic transactions, including licenses, collaborations, joint ventures, or promotion arrangements, operating income (loss), cash flow (including, but not limited to, operating cash flow and free cash flow), return on capital, assets, equity, or investment, return on sales, gross or net profit levels, productivity, expense, margins, operating efficiency, customer satisfaction, working capital, earnings (loss) per share of Stock, sales or market shares and number of customers, any of which may be measured either in absolute terms or as compared to any incremental increase or as compared to results of a peer group. The Committee may appropriately adjust any evaluation performance under a Performance Criterion to exclude any of the following events that occur during a Performance Cycle: (i)asset write-downs or impairments, (ii)litigation or claim judgments or settlements, (iii)the effect of changes in tax law, accounting principles or other such laws or provisions affecting reporting results, (iv)accruals for reorganizations and restructuring programs, and (v)any item of an unusual nature or of a type that indicates infrequency of occurrence, or both, including those described in the Financial Accounting Standards Boards authoritative guidance and/or in managements discussion and analysis of financial condition of operations appearing the Companys annual report to stockholders for the applicable year."
"(c) Delegation of Authority to Grant Awards. Subject to applicable law, the Administrator, in its discretion, may delegate to the Chief Executive Officer of the Company all or part of the Administrators authority and duties with respect to the granting of Awards to individuals who are (i)not subject to the reporting and other provisions of Section16 of the Exchange Act and (ii)not Covered Employees. Any such delegation by the Administrator shall include a limitation as to the amount of Stock underlying Awards that may be granted during the period of the delegation and shall contain guidelines as to the determination of the exercise price and the vesting criteria. The Administrator may revoke or amend the terms of a delegation at any time but such action shall not invalidate any prior actions of the Administrators delegate or delegates that were consistent with the terms of the Plan."
"(a) Stock Issuable. The maximum number of shares of Stock reserved and available for issuance under the Plan shall be the sum of 1,510,000 shares, plus the shares of Stock remaining available for issuance under the Jounce Therapeutics,Inc. 2013 Stock Option and Grant Plan (the 2013 Plan) as of the Effective Date (the Initial Limit), subject to adjustment as provided in this Section3, plus on January1, 2018 and each January1 thereafter, the number of shares of Stock reserved and available for issuance under the Plan shall be cumulatively increased by four percent of the number of shares of Stock issued and outstanding on the immediately preceding December31 or such lesser number of shares determined by the Administrator (the Annual Increase). For purposes of this limitation, the shares of Stock underlying any Awards that are forfeited, canceled, held back upon exercise of an Option or settlement of an Award to cover the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated under this Plan or the 2013 Plan (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan. In the event the Company repurchases shares of Stock on the open market, such shares shall not be added to the shares of Stock available for issuance under the Plan. Subject to such overall limitations, (a)the maximum aggregate number of shares of Stock that may be issued in the form of Incentive Stock Options shall not exceed the Initial Limit cumulatively increased on January1, 2018 and on each January1 thereafter by the lesser of the Annual Increase for such year or 1,510,000 shares of Stock and (b)shares of Stock may be issued up to such maximum number pursuant to any type or types of Award; provided, however, that Stock Options or Stock Appreciation Rights with respect to no more than 1,510,000 shares of Stock may be granted to any one individual grantee during any one calendar year period. The shares available for issuance under the Plan may be authorized but unissued shares of Stock or shares of Stock reacquired by the Company."
"(f) Annual Limit on Incentive Stock Options. To the extent required for incentive stock option treatment under Section422 of the Code, the aggregate Fair Market Value (determined as of the time of grant) of the shares of Stock with respect to which Incentive Stock Options granted under this Plan and any other plan of the Company or its parent and subsidiary corporations become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000. To the extent that any Stock Option exceeds this limit, it shall constitute a Non-Qualified Stock Option."
"payment shall be made prior to the date that is the earlier of (i)six months and one day after the grantees separation from service, or (ii)the grantees death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section409A. Further, the settlement of any such Award may not be accelerated except to the extent permitted by Section409A."
"(a) The Optionee may exercise this Stock Option only in the following manner: from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written or electronic notice to the Administrator of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice. This notice shall specify the number of Option Shares to be purchased."
"The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i)the Companys receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii)the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii)the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to."
"7. Tax Withholding. The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Company shall have the authority to cause the minimum required tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the"
"(b) The shares of Stock purchased upon exercise of this Stock Option shall be transferred to the Optionee on the records of the Company or of the transfer agent upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in connection with such transfer and with the requirements hereof and of the Plan. The determination of the Administrator as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionees name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock."
"8. Data Privacy Consent. In order to administer the Plan and this Agreement and to implement or structure future equity grants, the Company, its subsidiaries and affiliates and certain agents thereof (together, the Relevant Companies) may process any and all personal or professional data, including but not limited to Social Security or other identification number, home address and telephone number, date of birth and other information that is necessary or desirable for the administration of the Plan and/or this Agreement (the Relevant Information). By entering into this Agreement, the Optionee (i)authorizes the Company to collect, process, register and transfer to the Relevant Companies all Relevant Information; (ii)waives any privacy rights the Optionee may have with respect to the Relevant Information; (iii)authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv)authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Optionee shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable law."
"11. Data Privacy Consent. In order to administer the Plan and this Agreement and to implement or structure future equity grants, the Company, its subsidiaries and affiliates and certain agents thereof (together, the Relevant Companies) may process any and all personal or professional data, including but not limited to Social Security or other identification number, home address and telephone number, date of birth and other information that is necessary or desirable for the administration of the Plan and/or this Agreement (the Relevant Information). By entering into this Agreement, the Grantee (i)authorizes the Company to collect, process, register and transfer to the Relevant Companies all Relevant Information; (ii)waives any privacy rights the Grantee may have with respect to the Relevant Information; (iii)authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv)authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Grantee shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable law."
"2. Vesting of Restricted Stock Units. The restrictions and conditions of Paragraph1 of this Agreement shall lapse on the Vesting Date or Dates specified in the following schedule so long as the Grantee remains an employee of the Company or a Subsidiary on such Dates. If a series of Vesting Dates is specified, then the restrictions and conditions in Paragraph1 shall lapse only with respect to the number of Restricted Stock Units specified as vested on such date."
"3. Termination of Service. If the Grantees service with the Company and its Subsidiaries terminates for any reason (including death or disability) prior to the satisfaction of the vesting conditions set forth in Paragraph 2 above, any Restricted Stock Units that have not vested as of such date shall automatically and without notice terminate and be forfeited, and neither the Grantee nor any of his or her successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such unvested Restricted Stock Units."
"Vesting Schedule: Subject to Participants Continuous Service on each vesting date, the Award shall vest in accordance with the following vesting schedule: with respect to []% of the Award shares when Participant completes [] of Continuous Service after the Vesting Commencement Date, and an additional []% of the Award shares on each full [] of Continuous Service thereafter."
"(b) Good Reason means that one or more of the following are undertaken by the Company (or successor to the Company, if applicable) without your express written consent provided that you have first provided written notice to the Companys General Counsel of the existence of such condition within thirty (30)days after its initial existence and the Company (or surviving corporation) has not remedied such condition within thirty (30)days after your written notice is received by the Company and you separate from service within thirty (30)days following the expiration of the cure period: (i)a material reduction in your annual base salary, which you agree is a reduction of at least 10% of your base salary (unless pursuant to a salary reduction program applicable generally to the Companys similarly situated employees); (ii) a material reduction in your authority, duties or responsibilities; or (iii)a relocation of your principal place of employment with the Company (or successor to the Company, if applicable) to a place that increases your one- way commute by more than fifty (50)miles as compared to your then-current principal place of employment immediately prior to such relocation (excluding regular travel in the ordinary course of business)."
"(c) If you are currently subject to an effective Change Of Control Severance Agreement with the Company, then the parachute payment limitation provisions therein apply with respect to any payment or benefit under this Award that may arise in connection with a Change in Control and supersede the following paragraphs of this Section 9(c)."
"13\. Company Property. Executive represents and covenants that Executive has returned, or will return to Company, upon Companys request and in no event any later than the Separation Date, all property of the Company, including but not limited to all keys to the Companys offices, all equipment of any type, all documents, patient lists, physician lists, vendor lists, written information, forms, formulae, Company plan documents, Company legal documents, work-related e-mails, confidential health information (including private patient health information), and any other items relating to the Companys business that Executive generated or received from the Company, as well as any records and copies of the same belonging to the Company (or any entity affiliated with the Company), which are in Executives possession or control, including but not limited to all originals, copies, derivations, and summaries of any of the Companys confidential or proprietary information. Executive agrees to destroy any and all Company documents, including but not limited to e-mails and documents that Executive may have stored on Executives personal computers or other electronic devices of any kind."
"23\. Severability. If a court of competent jurisdiction should rule that any provision of this Agreement is invalid, illegal, or unenforceable in any respect, such ruling shall not affect the validity and enforceability of any other provision thereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein."
"For purposes of subparagraph (e)(1), Employee agrees to provide such access to Employees medical records and to submit to such physical examinations or medical tests as, in the opinion of the physician selected by Parent, is reasonably necessary to make the determination required as to Employees ability to perform Employees duties and responsibilities. If such physician is unable to render an opinion as to Employees ability to perform such duties and responsibilities due to Employees failure to provide such access to any of Employees medical records or to submit to any such examination or test (unless,"
"(1) Any person or group shall have announced publicly an intention to effect a Change in Control, or commenced any action (such as the commencement of a tender offer for Parents common stock or the solicitation of proxies for the election of any of Parents directors) that, if successful, could reasonably be expected to result in the occurrence of a Change in Control;"
"(c) Relocation. Nothing in this Agreement shall be construed in any way to limit the right of the Company to require Employee to perform Employees services on behalf of the Company at a different location or locations than the one at which Employee was performing Employees services immediately prior to the date hereof, or to require the Company to pay or provide any benefits to Employee on account of such relocation, other than to the extent benefits would be payable to Employee under the Companys applicable relocation policy as in effect at the relevant time."
"(3) A Separation Payment in an amount equal to Employee's Base Salary, which shall be paid 10 days following Employee's Date of Termination, provided that, if, at the Date of Termination, Employee is a ""specified employee"" within the meaning of Section 409A of the Code, as determined in accordance with the procedures specified or established by the Parent in accordance with such Section 409A and the regulations thereunder (a ""Specified Employee""), and the Separation Payment is payable due to Disability, the Separation Payment shall be made six months and one day after Employee's Date of Termination. In the event that the Separation Payment is made six months and one day after the Date of Termination, it shall be paid with interest from the Date of Termination at a rate equal to Employer's cost of borrowing under its principal credit facility as in effect at the Date of Termination, as determined in good faith by the Parent's Chief Financial Officer (the ""Employer's Borrowing Cost'')."
"(1) Disclosing any Nonpublic Information to any other employee of the Company or to any representative or agent of the Company (such as an independent accountant, engineer, attorney or financial advisor) when such disclosure is reasonably necessary or appropriate (in Employees judgment) in connection with the performance by Employee of Employees duties and responsibilities;"
"(c) Commitment to Seek Protective Order. If Employee is requested pursuant to, or required by, applicable law, rule, regulation or legal process to disclose any Nonpublic Information, Employee will notify Parent promptly so that the Company may seek a protective order or other appropriate remedy or, in Parents sole discretion, waive compliance with the terms of this subparagraph, and Employee will fully cooperate in any attempt by the Company to obtain any such protective order or other remedy. If no such protective order or other remedy is obtained, or if Parent waives compliance with the terms of this subparagraph, Employee will furnish or disclose only that portion of the Nonpublic Information as is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Nonpublic Information that is so disclosed."
"(a) Non-Solicitation of Employees. During the period of Employees employment with the Company (the Employment Period) and during the 2 year period following Employees Date of Termination (the Restriction Period), Employee shall not directly or indirectly induce any employee of the Company to terminate employment with such entity, and shall not directly or indirectly, either individually or as owner, agent, employee, consultant or otherwise, employ or offer employment to any person who is or was employed by the Company unless such person shall have ceased to be employed by the Company for a period of at least 6 months."
"(iv)any corporation or other legal person, pursuant to a tender offer, exchange offer, purchase of stock (whether in a market transaction or otherwise) or other transaction or event acquires securities representing 40% or more of the combined voting power of the voting securities of the Company, or there is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the U.S. Securities Exchange Act, disclosing that any person (as such term is used in Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act) has become the beneficial owner (as such term is used in Rule 13d-3 under the Securities Exchange Act) of securities representing 40% or more of the combined voting power of the voting securities of the Company."
"Notwithstanding the foregoing, none of the foregoing event(s) shall constitute a Change in Control unless such event(s) constitutes a change in the ownership or effective control or a change in the ownership of a substantial portion of the assets, in each case within the meaning of Section 409A(a)(2)(A)(v) of the Code and any regulations and other guidance in effect from time-to-time thereunder."
"(c)It is intended that each installment, if any of the payments and benefits constituting Deferred Compensation shall be treated as a separate payment for purposes of Section 409A of the Code. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code."
"(a) the willful and continued failure of Executive to perform his material job duties with the Company or one of its Affiliates (other than any such failure resulting from Disability), after a written demand for substantial performance is delivered to Executive by the Company which specifically identifies the manner in which the Company believes that Executive has not substantially performed Executives duties and Executive has had an opportunity for thirty (30) days to cure such failure after receipt of such written demand;"
"3. Notice of Termination. Any termination of Executives employment by the Company or Executive (as applicable) shall be effected by a Notice of Termination from the party effecting the termination to the other party hereto; provided that, notwithstanding anything to the contrary in this Agreement, no Notice of Termination must be given, and no other action shall be required"
"to terminate Executives employment hereunder, if Executives employment terminates due to his death. For purposes of this Agreement, a Notice of Termination shall mean a written notice that (a)indicates the specific provision(s)in this Agreement pursuant to which Executive is or is not entitled to severance under this Agreement and (b)sets forth in reasonable detail the facts and circumstances that provide a basis for payment or non- payment of severance pursuant to such provision(s)."
"4.2 For Cause Termination. The Employer may terminate Executives employment for Cause at any time upon written notice to the Executive. For this purpose, Cause shall be deemed to exist if (i)the Employer determines in good faith and following a reasonable investigation that the Executive has committed fraud, theft or embezzlement from the Employer; (ii)the Executive pleads guilty or nolo contendere to or is convicted of any felony or other crime involving moral turpitude, fraud, theft, or embezzlement; (iii)the Executive willfully fails or refuses to perform any material obligation under this Agreement or to carry out the reasonable directives of the Executives supervisor, and the Executive fails to cure the same within a period of 30days after written notice of such failure is provided the Executive by the Employer; or (iv)the Executive has engaged in on-the-job conduct that violates the Employers written Code of Ethics or company policies, and which is materially detrimental to the Employer. The"
"(f) Outplacement Services. The Executive shall be entitled to career transition and outplacement services to include one-on-one coaching covering reemployment, career changes, entrepreneurial/consulting ventures, etc., and access to comprehensive office and administrative services for a period not to exceed twelve (12)months following Executives termination date. Such outplacement services will be provided by an outside organization selected and paid for by the Employer."
"6.4 Effect of Other Agreements. In the event during Executives employment with the Employer the Executive signs other agreements containing provisions regarding non-competition, non-solicitation or confidentiality, the parties intend that the provisions set forth in this Agreement shall be controlling and such other provisions shall have no effect, unless the agreement containing such other provisions specifically references this Agreement and indicates the parties intention that such provisions apply notwithstanding the terms of this paragraph."
"option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine; provided, however, that if the Employer directs Executive to pay such claim and sue for a refund, the Employer shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Employers control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority."
"3\. I am further waiving my right to receive money or other relief in any action instituted by me or on my behalf by any person, entity or governmental agency. Nothing in this Release shall limit the rights of any governmental agency or my right of access to, cooperation or participation with any governmental agency, including without limitation, the United States Equal Employment Opportunity Commission. I further agree to waive my rights under any other statute or regulation, state or federal, which provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor."
"BY SIGNING THIS RELEASE, I ACKNOWLEDGE THAT: I HAVE READ THIS RELEASE AND UNDERSTAND ITS TERMS; I HAVE HAD THE OPPORTUNITY TO REVIEW THIS RELEASE WITH LEGAL OR OTHER PERSONAL ADVISORS OF MY OWN CHOICE; I UNDERSTAND THAT BY SIGNING THIS RELEASE I AM RELEASING THE RELEASED PARTIES OF ALL CLAIMS AGAINST THEM; I HAVE BEEN GIVEN TWENTY-ONE DAYS TO CONSIDER THE TERMS AND EFFECT OF THIS RELEASE AND I VOLUNTARILY AGREE TO ITS TERMS."
"8. Expenses of Enforcement. Upon demand by Executive made to the Company, the Company shall fully reimburse Executive for the reasonable expenses (including attorneys fees and expenses and costs of expert witnesses) incurred by Executive in enforcing or seeking to enforce the payment of any amount to which Executive is entitled under this Agreement as a result of the termination of Executives employment with the Company in accordance with the terms hereof. Payments under this Section8 shall be made within ten (10)business days after the delivery of Executives written request for the payment accompanied by such evidence of fees and expenses incurred as the Company may reasonably require."
"13.5. Governing Law and Venue. This Agreement shall be construed under and enforced in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions thereof. The sole and exclusive venue for any dispute arising from this Agreement shall be the state or federal courts of Tarrant County, Texas."
"1.At-Will Nature of Employment. The Executive acknowledges and agrees that the Executives employment with the Company is and shall remain at-will and the Executives employment with the Company may be terminated at any time and for any reason (or no reason) by the Company or the Executive, with or without notice, subject to the terms of this Agreement. During the period of the Executives employment with the Company, the Executive shall perform such duties and fulfill such responsibilities as reasonably requested by the Company from time to time commensurate with the Executives position with the Company."
"(d)Notice of Termination. Any termination of the Executives employment by the Company or by the Executive shall be communicated by a written Notice of Termination addressed to the Executive or the Company, as applicable. A Notice of Termination shall mean a notice stating that the Executives employment with the Company has been or will be terminated and the specific provisions of this Section 1 under which such termination is being effected."
"taxes on such reimbursement; provided, however, that the Companys obligation shall cease upon the earlier of (i) the Executives becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executives right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 2(d)(ii)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable); and"
"(ii)To the extent that any benefits to be provided during the Delay Period is considered deferred compensation under Code Section 409A provided on account of a separation from service, and such benefits are not otherwise exempt from Code Section 409A, the Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Companys share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein."
"(a)This Agreement shall be binding upon and shall inure to the benefit of the Company, its successors and assigns, and the Company shall require any successor or assign to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. The term the Company as used herein shall include any such successors and assigns to the Companys business and/or assets. The term successors and assigns as used herein shall mean a corporation or other entity acquiring or otherwise succeeding to, directly or indirectly, all or substantially all the assets and business of the Company (including this Agreement) whether by operation of law or otherwise."
" | (a) | Severance. Employee will receive an amount equal to Employees annual base salary in effect as of the date immediately prior to the Effective Date (such annualized amount equal to $489,250), as severance pay less deductions required by law. Employees severance will payable over the twelve (12)month period following the Effective Date (the Separation Period) in accordance with Stereotaxis regular payroll schedule in effect on the Effective Date and will commence once the revocation period set forth in section 6(e) has elapsed without Employee revoking this Release. The severance pay payable as salary continuation under this Section2(a) will be offset by the amount of any compensation Employee receives during the Severance Period from another employer or as an independent contractor, including fees for service on a board of directors, board of trustees, advisory board or comparable board, except for fees for service on any such boards of which Employee is a member as of the Effective Date, the fees for which shall not be subject to offset. Employee agrees to notify the Company of the receipt of any such third party employer or independent contractor compensation, and agrees to inform any such third party employer or independent contractor of the obligation to so inform the Company pursuant to this Agreement. ---|---|--- "
" | (c) | PTO and Salary. No later than February13, 2017, the Company shall pay Employee $75,445.64 less deductions required by law, representing 320.75 hours of accrued but unused Paid Time Off. In addition, the Company shall pay Employee for all remaining salary due to him for his employment through the Effective Date no later than the Companys first regular payroll date following the Effective Date. The Company shall also reimburse Employee for any unreimbursed business expenses, subject to the Companys business expense reimbursement policies and practices. ---|---|--- "
" | (e) | Employee acknowledges that Employee has been advised by Stereotaxis that Employee is entitled to revoke (in the event Employee executes this document) Employees waiver of rights or claims arising under the ADEA within seven (7)days after executing this document by notifying Stereotaxis in writing at: Stereotaxis, 4320 Forest Park Avenue, Suite 100, St. Louis, Missouri 63108, Attn: VP of Human Resources that Employee intends to revoke this waiver and that said waiver will not and does not become effective or enforceable until the seven (7)day period has expired. Employee agrees that payment of monies due under this executed and unrevoked waiver shall not be payable until the seven (7)day revocation period has expired and Employee has not revoked this waiver. Such revocation shall not apply to Employees resignation from the Board. ---|---|--- "
"(i) Any person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of (A) the then outstanding common stock of the Company or (B) the total voting power represented by the Companys then outstanding voting securities; or"
"(ii) for Specified Employees, in addition to the events described in clause (i) above, the occurrence without the Specified Employees written consent, on or after the date of a Change in Control, of either (a) a material reduction in the Specified Employees authority, duties or responsibilities relative to the Specified Employees authority or responsibilities in effect immediately prior to the Change of Control; or (b) a material change in reporting."
"1.21 Severance means during the three (3) months immediately preceding a Change in Control and ending eighteen months after the Change in Control, a termination of an Eligible Employees employment with the Employer (A) by the Employer without Cause or (B) by the Eligible Employee for Good Reason, which termination is made in connection with the Change in Control, as determined by the Plan Administrator in its sole discretion, provided that if and to the extent required by Code Section 409A, such employment termination meets the criteria for a separation from service as defined in Treas. Reg.  1.409A-1(h). Termination of an Eligible Employees employment on account of death or Disability shall not be treated as a Severance."
"3.4 Unless such requirement is waived pursuant to Section 3.1, the Plan Administrator shall promptly provide the Severance Agreement and Release to an Eligible Employee who becomes eligible for a payment and benefits under Section 2.1 and shall require an executed Severance Agreement and Release to be returned to the Plan Administrator within no more than forty-five (45) days (or such shorter time period as the Plan Administrator may impose, subject to compliance with applicable law) from the Severance Date. Unless such requirement is waived under Section 3.1, if the Eligible Employee does not execute and return the Severance Agreement and Release to the Plan Administrator within the specified time period, he or she will not be entitled to any payments or benefits under the Plan."
"4.3 The Plan shall terminate on the sixth anniversary of the Effective Date unless extended by the Company or unless a Change in Control shall have occurred prior thereto and the Plan was not assumed, in which case the Plan shall terminate automatically eighteen months and one day after a Change in Control or, if later, when all benefits payable under the Plan are paid."
"(b)he will not, without disclosure to and approval of the Board, directly or indirectly, assist or have an active interest in (whether as a principal, stockholder, lender, employee, officer, director, partner, venturer, consultant or otherwise) any person, firm, partnership, association, corporation or business organization, entity or enterprise that competes with or is engaged in a business which is substantially similar to the business of the Company; provided, however, that ownership of not more than two percent (2%) of the outstanding securities of any class of any publicly held corporation shall not be deemed a violation of this Section 2.5; provided, further, that any investment specifically listed on Schedule A shall not be deemed a violation of this Section 2.5."
"4.2Definition and Determination of Disability. If the Company determines in good faith that the Disability (as defined below) of the Executive has occurred during the Employment Term, the Company may give the Executive notice of its intention to terminate the Executives employment. In such event, the Executives employment hereunder shall terminate effective on the thirtieth (30th) day after receipt of such notice by the Executive (the Disability Effective Date); provided, that, within the thirty (30) day period after such receipt, the Executive shall not have returned to full-time performance of the Executives duties. For purposes of this Agreement, Disability shall mean the absence of the Executive from the Executives duties hereunder on a full-time basis for an aggregate of 180days within any given period of two hundred seventy (270) consecutive days (in addition to any statutorily required leave of absence and any leave of absence approved by the Company) as a result of incapacity of the Executive, despite any reasonable accommodation required by law, due to bodily injury or disease or any other mental or physical illness, which will, in the opinion of a physician selected by the Company or its insurers and acceptable to the Executive or the Executives legal representative, be permanent and continuous during the remainder of the Executives life."
"(ii)to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any annual bonus plan, program, policy, practice or arrangement or contract or agreement of the Company and its affiliated companies (such other amounts and benefits hereinafter referred to as the Other Benefits)."
"21.Integration. This Agreement, and the surviving provisions of the accompanying ExhibitA, constitute an integrated; written contract, expressing the entire agreement between the Parties with respect to the subject matter hereof. In this regard, Executive represents and warrants that he is not relying on any promises or representations which do not appear written herein. Executive further understands and agrees that this Agreement can be amended or modified only by a written agreement, signed by all of the Parties hereto."
"(b) Notice of Termination. Any termination by the Company for Cause or by Executive for Good Reason will be communicated by a notice of termination to the other party hereto given in accordance with Section 8(a) of this Agreement. Such notice will indicate the specific termination provision in this Agreement relied upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and will specify the termination date (which will be not more than 90 days after the giving of such notice)."
"If your employment with the Company terminates pursuant to this Section I, you will be paid the following amounts (which you acknowledge would not be due you in the absence of this Agreement) on the first business day following the date which is six months after the Voluntary Termination Date (the Six-Month Delay Date) (or if sooner, upon your death), provided that on or after the Voluntary Termination Date, and at least 10 days prior to the Six-Month Delay Date, you execute and return to the Company the release agreement attached as Exhibit A (the Release Agreement) and (ii)any period within which you may revoke the Release Agreement pursuant to the terms thereof has expired without you having revoked the Release Agreement:"
"Notwithstanding the foregoing, pursuant to the Defend Trade Secrets Act of 2016, you will not be held criminally, or civilly, liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a Federal, State, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, you may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if you file a lawsuit alleging retaliation by the Company for reporting a suspected violation of the law, you may disclose the trade secret to your attorney and use the trade secret in the court proceeding, provided that you file any document containing the trade secret under seal and do not disclose the trade secret, except pursuant to court order."
"(i) Severance Payment. Employee will receive a lump-sum payment equal to the sum of (A)one hundred percent (100%) of Employees annual base salary as in effect immediately prior to Employees termination date or, if greater, at the level in effect immediately prior to the Change of Control, and (B)one hundred percent (100%) of Employees actual bonus for the prior fiscal year."
"(f) Exclusive Remedy. In the event of a termination of Employees employment as set forth in Section3(a) and Section3(b) of this Agreement, the provisions of this Section3 are intended to be and are exclusive and in lieu of any other rights or remedies to which Employee or the Company otherwise may be entitled, whether at law, tort or contract, in equity, or under this Agreement (other than the payment of accrued but unpaid wages, as required by law, and any unreimbursed reimbursable expenses). Employee will be entitled to no benefits, compensation or other payments or rights upon a termination of employment prior to or following a Change of Control other than those benefits expressly set forth in Section3 of this Agreement."
(iv) Any amount paid under this Agreement that satisfies the requirements of the short-term deferral rule set forth in Section1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Benefits for purposes of clause (i)above. It is the intent of this Agreement that all cash severance payments under Sections 3(a)(i) and 3(b)(i) will satisfy the requirements of the short-term deferral rule.
"(b) Notice of Termination. Any termination by the Company for Cause or by Employee for Good Reason will be communicated by a notice of termination to the other party hereto given in accordance with Section8(a) of this Agreement. Such notice will indicate the specific termination provision in this Agreement relied upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and will specify the termination date (which will be not more than ninety (90)days after the giving of such notice). The failure by Employee to include in the notice any fact or circumstance which contributes to a showing of Good Reason will not waive any right of Employee hereunder or preclude Employee from asserting such fact or circumstance in enforcing his or her rights hereunder."
"1\. Termination prior to a Change of Control. If, within nine (9)months prior to a Change of Control (as such term is defined in Section3(c) below) and subsequent to the commencement of substantive discussions that ultimately result in the Change of Control, but prior to such Change of Control, the Company terminates the Executives employment with the Company for a reason other than Cause (as such term is defined in Section3(d) below), death or Disability (as such term is defined in Section3(e) below), the Company shall, subject to the Executives satisfaction of the Release Condition (as such term is defined in Section3 below):"
"to terminate Executives employment hereunder, if Executives employment terminates due to his death. For purposes of this Agreement, a Notice of Termination shall mean a written notice that (a)indicates the specific provision(s)in this Agreement pursuant to which Executive is or is not entitled to severance under this Agreement and (b)sets forth in reasonable detail the facts and circumstances that provide a basis for payment or non- payment of severance pursuant to such provision(s)."
"5.1. Non-Solicitation. During the Term and for one year following the termination of Executives employment, taking into consideration the fact that Executive will be provided with sensitive and confidential information of the Company and its Affiliates, Executive shall not (a)cause, solicit, induce or encourage any employees of the Company or any of its Affiliates to leave such employment or hire, employ or otherwise engage any such individual (other than for the Company and its Affiliates); or (b)cause, induce or encourage any material actual or prospective customer, supplier, or licensor of the Company or any of its Affiliates (including any Person or entity that becomes a customer of the Company or any of its Affiliates after the Effective Date) or any other Person who has a material business relationship with the Company or its Affiliates to terminate or modify any such actual or prospective relationship."
"5.3. Reformation. The Company and Executive agree that if any arbitrator or court of competent jurisdiction determines that a specified time period, business limitation or any other relevant feature of this Section5 is unreasonable, arbitrary or against public policy, then a lesser period of time, business limitation or other relevant feature which is determined by such arbitrator or court to be reasonable, not arbitrary, and not against public policy may be substituted and enforced against the applicable party."
"13.5. Governing Law and Venue. This Agreement shall be construed under and enforced in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions thereof. The sole and exclusive venue for any dispute arising from this Agreement shall be the state or federal courts of Tarrant County, Texas."
"(b)The Company may terminate this Agreement and the Employees employment hereunder for Cause, and the Employee may terminate his employment on at least 30 days written notice given to the Company. If the Company terminates the Employee for Cause, or the Employee terminates his employment and the termination by the Employee is not for Good Reason in accordance with Section 2.2, (i) the Employee shall receive Base Salary and other benefits (including any bonus for a fiscal year completed before termination and awarded but not yet paid) earned and accrued under this Agreement prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); and (ii) the Employee shall have no further rights to any other compensation or benefits under this Agreement on or after the termination of employment. Unless the payment is required to be delayed pursuant to Section 5.13(b) below, the cash amounts payable to the Employee under this Section 2.1(b) shall be paid to the Employee in a single-sum payment within 30 days following the date of his termination of employment with the Company pursuant to this Section 2.1(b)."
"2.5 Execution of Release. The Employee acknowledges that, if required by the Company prior to making the severance payments and benefits set forth, (other than accrued but unpaid Base Salary and other benefits), all such severance payments and benefits are subject to his execution of a general release from liability of the Company and its officers (including his successor), directors and employees, and such release becoming irrevocable by its terms. If Employee fails to execute such release, or such release does not become irrevocable, all such payments and benefits set forth shall be forfeited."
"3.3 Rights and Remedies upon Breach. The Employee acknowledges and agrees that any breach by him of any of the provisions of Sections 6.1 and 6.2 (the Restrictive Covenants) would result in irreparable injury and damage for which money damages would not provide an adequate remedy. Therefore, if the Employee breaches, or threatens to commit a breach of, any of the provisions of Sections 6.1 or 6.2, the Company and its affiliates, in addition to, and not in lieu of, any other rights and remedies available to the Company and its affiliates under law or in equity (including, without limitation, the recovery of damages), shall have the right and remedy to have the Restrictive Covenants specifically enforced by any court having equity jurisdiction, including, without limitation, the right to an entry against the Employee of restraining orders and injunctions (preliminary, mandatory, temporary and permanent) against violations, threatened or actual, and whether or not then continuing, of such covenants."
"4.10 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof each signed by one of the parties hereto."
"(a) the willful and continued failure of Executive to perform his material job duties with the Company or one of its Affiliates (other than any such failure resulting from Disability), after a written demand for substantial performance is delivered to Executive by the Company which specifically identifies the manner in which the Company believes that Executive has not substantially performed Executives duties and Executive has had an opportunity for thirty (30) days to cure such failure after receipt of such written demand;"
"4.3. No Other Severance. Executive hereby acknowledges and agrees that, other than the severance payment described in Section4.1 hereof, upon termination, Executive shall not be entitled to any other severance under any benefit plan or severance policy of the Company or any of its Affiliates generally available to the Companys employees or otherwise."
"8. Expenses of Enforcement. Upon demand by Executive made to the Company, the Company shall fully reimburse Executive for the reasonable expenses (including attorneys fees and expenses and costs of expert witnesses) incurred by Executive in enforcing or seeking to enforce the payment of any amount to which Executive is entitled under this Agreement as a result of the termination of Executives employment with the Company in accordance with the terms hereof. Payments under this Section8 shall be made within ten (10)business days after the delivery of Executives written request for the payment accompanied by such evidence of fees and expenses incurred as the Company may reasonably require."
"9.1. Mitigation. Executive shall not be required to mitigate the amount of any payment required to be paid to Executive pursuant to this Agreement, whether by seeking other employment or otherwise, nor shall the amount of any such payment be reduced on account of any compensation earned by Executive as a result of employment by another Person."
"A. Involuntary Termination With Cause. If the Company terminates your employment due to Cause, you will receive no severance payment under this Agreement or any other severance plan, policy or arrangement of the Company or any of its affiliates. For purposes of this Agreement, Cause means: (i)your willful and continued failure to substantially perform your duties that has not been cured within thirty days after a written demand for substantial performance is delivered to you, which demand specifically identifies the manner in which the Company believes that you have not substantially performed your duties, or (ii)your willful engagement in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of clauses (i)and (ii) of this definition, (x)no act, or failure to act, on your part shall be deemed willful unless done, or omitted to be done, by you not in good faith and without reasonable belief that your act, or failure to act, was in the best interest of the Company, and (y)in the event of a dispute concerning the application of this provision, no claim by the Company that Cause exists shall be given effect unless the Companys Board of Directors (the Board) determines that there is clear and convincing evidence that Cause exists and the Board finding to that effect is adopted by the affirmative vote of not less than three quarters of the entire membership of the Board (after reasonable notice to you and an opportunity for you, together with your counsel, to be heard by the Board)."
The Company shall have the right to assign its rights and obligations under this Agreement to any entity that acquires all or substantially all of the assets of the Company and continues the Companys business. The rights and obligations of the Company under this Agreement shall inure to the benefit and shall be binding upon the successors and assigns of the Company.
"(ii)It is intended that none of the severance payments under this Agreement will constitute Deferred Payments but rather will be exempt from Section 409A as a payment that would fall within the short-term deferral period as described in Section 3(c)(iv) below or resulting from an involuntary separation from service as described in Section 3(c)(iv) below. However, any severance payments or benefits under this Agreement that would be considered Deferred Payments will be paid on, or, in the case of installments, will not commence until, theRelease Deadline, or, if later, such time as required by Section 3(c)(iii). Except as required by Section 3(c)(iii), any installment payments that would have been made to Executive during the period immediately following Executives separation from service but for the preceding sentence will be paid to Executive on the Release Deadline following Executives separation from service and the remaining payments will be made as provided in this Agreement. In any case where Executives separation from service and the Release Deadline fall in two separate calendar years, any amount required to be paid to Executive that is conditioned on the effectiveness of the Release and is treated as a Deferred Payment shall be paid in the later calendar year."
(iii)the relocation of Executives principal place of performing his or her duties as an employee of the Company to a place that increases Executives one-way commute by more than fifty (50)miles as compared to Executives then current principal place of employment immediately prior to such relocation (excluding regular travel in the ordinary course of business);
"9.Resignation. Upon the termination of Executives employment for any reason, Executive will be deemed to have resigned from all officer and/or director positions held at the Company and its affiliates voluntarily, without any further required action by Executive, as of the end of Executives employment and Executive, at the Companys request, will execute any documents reasonably necessary to reflect Executives resignation. "
"(d) Administrative Relief.This Section10 does not limit Executives right to file an administrative charge with the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), or any state agency charged with enforcement of fair employment practice laws, but Executive agrees to arbitrate under this Agreement all rights to any form of recovery or relief, including monetary or other damages. This agreement also does not apply to or cover claims for workers compensation benefits or compensation, claims for unemployment compensation benefits, or claims based upon an employee pension or benefit plan the terms of which contain an arbitration or other non-judicial dispute resolution procedure, in which case the provisions of such plan shall apply."
"12.Protected Activities. Notwithstanding anything herein to the contrary, nothing in this Agreement or the Confidentiality Agreement shall (a)prohibit Executive from filing a charge with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other comparable federal agency, state agency or securities regulatory body (the Government Agencies); (b) prohibit Executive from reporting possible violations of law to an appropriate Government Agency in a confidential manner without notice to the Company as authorized in any whistleblower protection provisions of any federal or state law or regulation; or (c)limit Executives lawful opportunity to cooperate with or participate in any administrative proceeding or investigation that may be conducted by a Government Agency. With respect to any information disclosed pursuant to this protected activity exception that may constitute confidential or proprietary information, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure to any parties other than the relevant agency or authority. Except as prohibited by applicable law, rule, or regulation, the payments paid to pursuant to the Change of Control Agreement will be the sole monetary relief available to Executive, and Executive will not be entitled to recover, and agrees to waive, any additional personal monetary relief that may be sought from or awarded against the Company in the future without regard to who filed or brought such claim. However, this Agreement does not waive Executives right to receive an award for original information from any Government Agency, including but not limited to any such award pursuant to Section 21F of the Securities Exchange Act of 1934. "
"20. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Executive concerning the subject matter of this Agreement and Executives employment with and separation from the Company and the events leading thereto and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement and Executives relationship with the Company, with the exception of the Change of Control Agreement, the Confidentiality Agreement and any of Executives written equity compensation agreements with the Company that are expressly not superseded by the Change of Control Agreement pursuant to Section 11(d) thereof. "
"(i) Failure to elect or reelect or otherwise to maintain the Executive in the office or the position, or a substantially equivalent or better office or position, of or with the Company and/or an Affiliate of the Company (or any successor thereto by operation of law or otherwise), as the case may be, which the Executive holds as of the commencement of your employment or the removal of the Executive as a Director of the Company and/or an Affiliate of the Company (or any successor thereto) if the Executive is elected or appointed as a Director of the Company and/or an Affiliate of the Company;"
"12. Notices. For all purposes of this Agreement, all communications, including without limitation notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid, or three business days after having been sent by a nationally recognized overnight courier service such as FedEx or UPS, addressed to the Company (to the attention of the Secretary of the Company) at its principal executive office and to the Executive at his principal residence, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address shall be effective only upon receipt."
"(4) Vesting of all performance-based equity (or equity-based ) awards then- held by the Executive based on actual achievement of the applicable performance conditions if the Executive had remained employed until the last day of the applicable performance period (as determined by the Board or a committee thereof after completion of the performance period), prorated based on the number of days that the Executive was employed during such performance period."
" You will be eligible to receive an equity incentive grant each year, subject to the approval of DiamondRocks Board of Directors. Your initial equity incentive grant award will be valued at $600,000 and, subject to approval from the Board of Directors, is expected to be issued in February2017\. The equity incentive grant will be composed of two components, each of which will comprise 50% of the total equity incentive grant, as follows: (i)Restricted Stock, which will vest in three equal annual installments, commencing in February2018 and (ii)Performance Stock Units which will all vest in February2020 and will be based on (x)the total shareholder return of DiamondRock relative to the total shareholder return of a peer group over a three-year performance period and (y)achievement of certain targeted market share improvement by each of the Companys hotels over three years. The actual amount of Restricted Stock and Performance Stock Units will be determined by the closing price of"
"As you know, in the ordinary course of business, compensation and benefit programs evolve as business needs and laws change. To the extent it becomes necessary and desirable to change any of the plans in which you may participate, such changes will apply to you as they do to other employees of DiamondRock."
"This letter constitutes the full commitments that have been extended to you. However, this does not constitute a contract of employment for any period of time. DiamondRock reserves the right, at the discretion of the Board of Directors, to modify the compensation terms in the future subject to the limitations in the Severance Agreement. Further, please be aware that the Compensation Committee of DiamondRocks Board of Directors will need to formally approve these terms."
"(ii) a material diminution in Executives base compensation or target annual bonus opportunity, unless such reduction is imposed across-the-board to senior management of the Company (and Executive and the Company agree that without limiting any argument that a lesser diminution is material, any diminution of ten percent (10%) or more measured against Executives base compensation and target bonus opportunity as in effect on the Effective Date shall be deemed material for purposes of this clause (ii));"
"(a) If Executive has a Separation from Service as a result of Executives discharge by the Company without Cause or by reason of Executives resignation for Good Reason, in either case within sixty (60)days prior to a Change in Control or within eighteen (18)months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii), will be payable in a lump sum on the day that is sixty (60)days following the date of Executives Separation from Service:"
"(i) If any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive receives pursuant to the termination of Executives employment with the Company and its affiliates (Payment), would (A)constitute a parachute payment within the meaning of Section 280G of the Code, and (B)but for this sentence, be subject to the excise tax imposed by Section4999 of the Code (the Excise Tax), then such Payment shall be either (1)the full amount of such Payment or (2)such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executives receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax."
"3\. Severability. In the event any provision of this Release is found to be unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended that the parties shall receive the benefit contemplated herein to the fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby."
"(3) except as provided herein, notwithstanding any vesting schedule, forfeiture provisions, or anything else to the contrary in the respective award agreement or plan document governing such award, each outstanding and unvested equity award that vests solely based on the passage of time held by the Executive as of the day prior to his termination of employment with the Company shall remain outstanding for the period of nine (9) months following the Executives termination of employment with any vesting of such award being suspended until it is determined whether there is a Change of Control during the nine (9) month period following his termination of employment and (i) if a Change of Control occurs within such nine (9) month period, be treated as if the Executive had remained employed by the Company through the effective date of the Change of Control and, subject to Section 5(h) below, immediately become vested, exercisable and issuable and any forfeiture restrictions thereon shall lapse as of the Change of Control or (ii) if no Change of Control occurs within such nine (9) month period, terminate and be of no further force or effect. For the avoidance of doubt, (x) no award shall remain outstanding by virtue of this Section 2(a)(3) beyond its original term and (y) each outstanding and unvested equity award that vests based on the achievement of one or more performance metrics held by the Executive as of the day prior to his termination of employment with the Company shall not be governed by this Section 2(a)(3) and shall instead be governed by its terms;"
"(1) the Company shall pay to the Executive a lump sum amount (net of any required withholding) equal to: (i) twelve (12) months of Base Salary, plus (ii) the target bonus that could have been payable to such Executive (assuming continued employment) during the fiscal year in which the termination of employment occurs based on bonus arrangements in effect immediately prior to the termination of his employment (all payments under Sections 1, 2(a)(1) and this Section 3(a) being referred to collectively, as the Severance Payments); and"
"provided, however, that any amounts and benefits set forth in this Section 3 shall be reduced by any and all other severance or other amounts or benefits with the exception of qualified or nonqualified retirement or deferred compensation benefits paid or payable to the Executive as a result of the termination of his employment."
"(A) Each installment of the payments and benefits that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as hereinafter defined) shall be treated as a short-term deferral within the meaning of Treasury Regulation  1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of this Agreement, the Short-Term Deferral Period means the period ending on the later of the 15th day of the third month following the end of the Executives tax year in which the Executives separation from service occurs and the 15th day of the third month following the end of the Companys tax year in which the Executives separation from service occurs; and"
"(f) Nothing in this Agreement shall create any obligation on the part of the Company or any other person to continue the employment of the Executive. If the Executive elects to receive the severance and benefits set forth in Sections 1, 2 or 3, the Executive shall not be entitled to any other salary continuation or severance benefits in the event of his cessation of employment with the Company."
"(j) This Agreement is intended to comply with or be exempt from the provisions of Section 409A and shall, to the extent practicable, be construed in accordance therewith. Terms defined in the Agreement shall have the meanings given such terms under Section 409A if and to the extent required in order to comply with Section 409A. Notwithstanding the foregoing, to the extent that the Agreement or any payment or benefit hereunder shall be deemed not to comply with Section 409A, then neither the Company, the Board of Directors nor its or their designees or agents shall be liable to the Executive or any other person for any actions, decisions or determinations made in good faith."
"(k) Good Reason means the occurrence of any of the following without the Executives express prior written consent: (i)a material reduction of or to the Executives duties, authority, responsibilities or reporting relationship; (ii)a material reduction of the Executives Base Salary; (iii)a material reduction of the Executives Target Bonus; (iv)a material reduction in the kind or level of employee benefits to which the Executive is entitled that occurs within 12months following a Change of Control, unless similarly situated employees also experience a reduction; (v)a requirement that the Executive relocate his primary work location more than 25 miles from Irving, Texas or from any work location to which the Company transfers the Executive during the course of his employment and to which such transfer the Executive has consented; (vi)in connection with a Change of Control, the failure of the Company to assign this Agreement to a successor to the Company or the failure of a successor to the Company to explicitly assume and agree to be bound by this Agreement in a writing delivered to the Executive; or (vii)a material breach of this Agreement by the Company."
"(g) Initial Equity Awards. As a material inducement to Executives willingness to accept employment with the Company, on or shortly following the Effective Date, the Executive shall be granted restricted stock units with a value of $450,000 on the grant date, and a nonqualified stock option with a value of $1,050,000 on the grant date. The number of restricted stock units granted to the Executive shall be determined by dividing $450,000 by the closing price of the Companys common stock on the grant date. The number of shares of the Companys common stock subject to the option shall be based on the Companys option valuation methodology. These equity awards will be granted under the Companys 2015 Incentive Plan, as amended and restated (the 2015 Plan) and will vest in accordance with, and have such other terms and conditions as are specified in, the Restricted Stock Unit Notice and Letter Agreement and the Nonqualified Stock Option Letter Agreement approved by the Compensation Committee with respect to such awards (the Restricted Stock Unit Agreement and the NSO Agreement) and shall otherwise be subject to the terms and conditions of the 2015 Plan and the Restricted Stock Unit Agreement and the NSO Agreement; provided, however, that notwithstanding the foregoing, in the event of a conflict between the terms and conditions of the Restricted Stock Unit Agreement or the NSO Agreement and this Agreement, the terms and conditions of this Agreement shall prevail."
"Notwithstanding any provision to the contrary in any Company equity compensation plan or any outstanding equity award agreement, if, during the Agreement Term, the Executive terminates employment with the Company under circumstances described in this Section6(c), there shall be no acceleration of vesting or exercisability of any outstanding equity awards or extension of any option post-termination exercise period."
"If a Change of Control is consummated prior to the expiration of the Agreement Term, this Section6(d) shall apply to a termination of the Executives employment by the Company without Cause or by the Executive for Good Reason during the 12-month period immediately following the consummation of the Change of Control even if such 12-month period extends past the expiration of the Agreement Term. Moreover, notwithstanding the expiration of the Agreement Term, if a Change of Control is consummated within two months after the expiration of the Agreement Term, then this Section6(d) shall apply to a termination of the Executives employment by the Company without Cause or by the Executive for Good Reason (i)on the day of or during the 12-month period immediately following the consummation of the Change of Control or (ii)during the 2-month period prior to the consummation of the Change of Control but at the request of any third party participating in or causing the Change of Control or otherwise in connection with the Change of Control."
"(i) if the Executive is deemed on the date of termination to be a specified employee within the meaning of that term under Section409A, then with regard to any payment that is considered a deferral of compensation under Section409A payable on account of a separation from service, such payment shall be made on the date which is the earlier of (A)the date that is six months and one day after the date of such separation from service of the Executive and (B)the date of the Executives death (the Delay Period), to the extent required under Section409A. Within ten business days following the expiration of the Delay Period, all payments delayed pursuant to this Section13(b)(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for those payments in this Agreement;"
"1\. At-Will Employment: I acknowledge that my employment will be of indefinite duration and that either the Company or I will be free to terminate this employment relationship at will at any time with or without cause. I also acknowledge that any representations to the contrary are unauthorized and void, unless contained in a separate written employment contract approved by the Board of Directors of the Company or a Committee thereof. I further acknowledge that the terms and conditions of this Agreement shall survive termination of my employment."
"7\. Non-Disclosure of Third-Party Information Obtained Elsewhere: During my employment at the Company I will not improperly use or disclose any confidential or proprietary information or trade secrets of my former or current employers, principals, partners, co-ventures, clients, customers, or suppliers, or the vendors or customers of such persons or entities, unless such persons or entities have given consent to my use or disclosure. I will not violate any non-disclosure or proprietary rights agreement I might have signed in connection with any such person or entity."
" | c) | It does not result from any work performed by me for the Company. ---|---|--- 9\. Prior Inventions: I have listed and described on Exhibit B, attached hereto, all Inventions belonging to me and made by me prior to my employment at the Company that I wish to have excluded from this Agreement. If Exhibit B is left blank, I represent that there are no such Inventions. If, in the course of my employment at the Company, I use in or incorporate into an the Company product, process, or machine an Invention owned by me or in which I have an interest that is not on Exhibit B and is related (1)directly to the business of the Company or (2)to the actual or demonstrably anticipated research or development of the Company, the Company is hereby granted and shall have a non-exclusive, fully-paid up, royalty-free, irrevocable, worldwide license to make, have made, use and sell that Invention without restriction as to the extent of my ownership or interest."
"10\. Cooperation: I will execute any proper oath or verify any proper document in connection with carrying out the terms of this Agreement. If, because of my mental or physical incapacity or for any other reason whatsoever, the Company is unable to secure my signature to apply for or to pursue any application for any United States or foreign patent or copyright covering Inventions assigned to the Company as stated above, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, to act for me and in my behalf and stead to execute and file any such applications and to all other lawfully permitted acts to further the prosecution and issuance of U.S. and foreign patents and copyrights thereon with the same legal force and effect as if executed by me. I will testify at the Companys request and expense in any interference, litigation, or other legal proceeding that may arise during or after my employment. Notwithstanding anything to the contrary contained herein, (i)in requesting your cooperation under this Section10 following the termination of your employment, the Company shall take into account your personal and business commitments and (iii)in any event, in complying with your obligations under this Section10, you shall not be required to act against your own legal interests."
" |  |  | Up to $210,000 (inclusive of tax gross-up) for transaction expenses incurred in connection with the sale of your existing home and the purchase of your new home; ---|---|---|---  |  |  | Up to $40,000 for expenses incurred in connection with the packing and delivery of your personal possessions at the time of your relocation to Dallas; and ---|---|---|---  |  |  | Up to $5,000 per month (subject to a maximum of $150,000) for temporary lodging expenses and a maximum of $125,000 for miscellaneous commuting expenses. ---|---|---|--- In addition to the foregoing, the Company will (a)pay or reimburse Executive for up to $10,000 for legal expenses incurred by Executive in connection with the review of Executives offer letter and the Employment Agreement, and (b)pay to Executive an amount equal to 50% of the unpaid bonus and performance option compensation to which Executive would have otherwise been legally entitled as of the date of Executives employment separation from his immediately prior employer but for the fact that Executive terminated his employment with such employer and commenced employment with the Company and HD Vest (such amount, Relinquished Compensation), provided that the amount to be paid by the Company pursuant to this provision shall not exceed $250,000 in the aggregate. Executive shall provide the Company with documentation supporting his calculation of the Relinquished Compensation."
"any of its Affiliates, which in either case, results in or could reasonably be expected to result in material harm to the Company or such Affiliate; (ii) the willful and continued failure of the Employee to attempt to perform his duties with the Company or any of its Affiliates (other than any such failure resulting from Disability), which failure is not remedied within 30 days after receiving written notice thereof; (iii) the conviction of the Employee of (or the plea by the Employee of guilty or nolo contendere to) any felony involving moral turpitude (other than traffic related offenses or as a result of vicarious liability); or (iv) a material breach by the Employee of any material provision of this Agreement, which breach is not remedied within 10 days after receiving written notice thereof."
"(c)Position and Duties. During the Term, the Employee: (i) shall serve as Chief Operating Officer of the Company, with responsibilities, duties and authority customary for such positions, subject to direction by the Chief Executive Officer; (ii) shall report directly to the Chief Executive Officer; (iii) shall devote substantially all the Employees working time and efforts to the business and affairs of the Company; and (iv) agrees to observe and comply with the Companys rules and policies as adopted by the Company from time to time. The parties acknowledge and agree that Employees duties, responsibilities and authority may include services for one or more Affiliates of the Company."
"(b)Notice of Termination. Any termination of the Employees employment by the Company or by the Employee under this Section 4 (other than a termination pursuant to Section 4(a)(i) above) shall be communicated by a written notice to the other party hereto (a Notice of Termination): (i) indicating the specific termination provision in this Agreement relied upon, (ii) except with, respect to a termination pursuant to Sections 4(a)(iv) or (vi), setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Employees employment under the provision so indicated, and (iii) specifying a Date of Termination which, if submitted by the Employee, shall be at least 30 days following the date of such notice; provided, however, that a Notice of Termination delivered by the Company pursuant to Section 4(a)(ii) shall not be required to specify a Date of Termination, in which case the Date of Termination shall be determined pursuant to Section 4(a)(ii); provided further, that, notwithstanding the foregoing, in the event that the Employee delivers a Notice of Termination to the Company, the Company may, in its sole discretion, accelerate the Date of Termination to any date that occurs following the date of Companys receipt of such Notice of Termination (even if such date is prior to the date specified in such Notice of Termination). A Notice of Termination submitted by the Company (other than a Notice of Termination under Section 4(a)(ii)) may provide for a Date of Termination on the date the Employee receives the Notice of Termination, or any date thereafter elected by the Company in its sole discretion. The failure by the Company or the Employee to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or the Employee hereunder or preclude the Company or the Employee from asserting such fact or circumstance in enforcing the Companys or the Employees rights hereunder. Notwithstanding the foregoing, a termination pursuant to Section 4(a)(iii) shall be deemed to occur if following the Employees termination of employment for any reason the Company determines that circumstances existing prior to such termination would have entitled to the Company to terminate the Employees employment pursuant to Section 4(a)(iii) (disregarding any applicable cure period)."
"18.Absence of Conflicts; Employee Acknowledgement; Confidentiality. The Employee hereby represents that from and after the Effective Date the performance of the Employees duties hereunder will not breach any other agreement to which the Employee is a party. The Employee acknowledges that the Employee has read and understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any representations or promises made by the Company or any of its Affiliates other than those contained in writing herein, and has entered into this Agreement freely based on the Employees own judgment. The Employee agrees not to disclose the terms or existence of this Agreement to any Person unless the Company agrees to such disclosure in advance and in writing; provided that the Employee may, without such permission, make such disclosures as are required by applicable law, including disclosures to taxing agencies, and disclose the terms of this Agreement to the Employees attorney(s), accountant(s), tax advisor(s), and other professional service provider(s), and to members of the Employees immediate family, as reasonably necessary; provided, further, that the Employee instructs such Person(s) that the terms of this Agreement are strictly confidential and are not to be revealed to anyone else except as required by applicable law."
"or appropriate to exempt the amounts payable hereunder from Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, in no event shall any liability for failure to comply with the requirements of Section 409A be transferred from the Employee or any other individual to the Company or any of its Affiliates, employees or agents pursuant to the terms of this Agreement or otherwise."
"(b) In the event the Employee is terminated without Cause, the Employee shall be entitled to receive (i) any amounts earned, accrued or owing but not yet through the date of such termination; and (ii) a lump sum severance payment in an aggregate amount equal to six months of the Employees then-current Base Salary."
"(a) Severability. If any provision of this Agreement is inoperative or unenforceable for any reason, such circumstances shall not have the effect of (i) rendering the provision in question inoperative or unenforceable in any other case or circumstance, or (ii) rendering any other provision or provisions in this Agreement invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses, sections or subsections of this Agreement shall not affect the remaining portions of this Agreement."
"Cause means any of the following: (i) any willful or grossly negligent and continued failure by Employee to perform her duties under this Agreement in any material respect that is not promptly (but in no event later than ten (I 0) business days after written notice thereof is received by Employee or such longer period of time not to exceed thirty (30) days if the nature of such failure makes it impractical to cure within ten (I0) business days) cured by resuming the performance of such duties; provided, however, that for the purposes of determining whether conduct constitutes willful or grossly negligent conduct, no act on Employees part shall be considered willful unless it is done by the Employee in bad faith or without reasonable belief that such action was in the best interests of the Company; (ii) Employee embezzles or converts to her own use any funds of the Company or any business opportunity of the Company; (iii) Employee destroys or converts to her own use any property of the Company, without the Companys consent; (iv) Employee is convicted of or enters a guilty plea or plea of no contest with respect to a felony; (v) Employee commits an act of moral turpitude which could reasonably be expected to injure or pose a threat of injury or material economic harm to the Company or any of its Affiliates; or (vi) Employee is habitually intoxicated or is addicted to a controlled substance and such controlled substance is illegal or materially interferes with the performance of her duties; provided however. that Employee shall be permitted to seek medical treatment for a reasonable period of time prior to any termination pursuant to this clause (vi)."
"prorated if necessary) on Playa Resorts regularly scheduled payroll dates, minus such deductions as may be required by law or reasonably requested by Mr.Wardinski. The Playa Board shall review Mr.Wardinskis Base Salary annually in conjunction with its regular review of executives salaries and make such increases, if any, to his Base Salary as the Playa Board shall deem appropriate in its sole and absolute discretion."
"(c) Termination by Playa Resorts without Cause or by Mr.Wardinski for Good Reason. If Playa Resorts terminates this Agreement without Cause pursuant to Section5(b) above, or Mr.Wardinski terminates this Agreement for Good Reason pursuant to Section5(c) above, in each case during the Employment Period, then Mr.Wardinski shall only be entitled to receive, and Playa Resorts shall pay, in addition to the items referenced in Section6(a) above, the following:"
(C) A Change in Effective Control of Playa shall occur on the date more than fifty percent (50%)of the members of the Playa Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the existing members of the Playa Board.
"(j) Cooperation. Following Mr.Wardinskis termination or resignation, Mr.Wardinski shall assist and cooperate with Playa Resorts and the Playa Affiliates in the orderly transition of work to others if so requested by Playa Resorts or the Playa Affiliates. Mr.Wardinski shall cooperate with Playa Resorts and the Playa Affiliates and be responsive to requests for information by any of them relating to their respective business matters about which Mr.Wardinski may have information or knowledge and reasonably assist Playa Resorts and the Playa Affiliates, as the case may be, with any litigation, threatened litigation or arbitration proceeding relating to Playa Resorts or any Playa Affiliates business as to which business Mr.Wardinski had relevant knowledge, and Playa Resorts shall reimburse Mr.Wardinski for reasonable costs, including attorneys fees and expenses, actually incurred by Mr.Wardinski in connection with such assistance."
"c. Section409A Compliance. Notwithstanding anything to the contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement shall be provided in accordance with the requirements of Treasury Regulation Section1.409A-3(i)(1)(iv), such that any in-kind benefits and reimbursements provided under this Agreement during any calendar year shall not affect in- kind benefits or reimbursements to be provided in any other calendar year, other than an arrangement providing for the reimbursement of medical expenses referred to in Code Section105(b), and any in-kind benefits and reimbursements shall not be subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely submitted, reimbursement payments shall be promptly made to Executive following such submission, but in no event later than December31st of the calendar year following the calendar year in which the expense was incurred. In no event shall Executive be entitled to any reimbursement payments after December31st of the calendar year following the calendar year in which the expense was incurred."
"Nothing in this Agreement shall be construed to prohibit Executive from contacting, filing a charge or participating in any proceeding or investigation by the U.S. Equal Employment Opportunity Commission (the EEOC), the Department of Labor (the DOL), the National Labor Relations Board (the NLRB), or other government agency. Notwithstanding the foregoing, Executive agrees to waive any right to recover monetary damages in any charge, complaint, or lawsuit filed by Executive or on Executives behalf."
"7\. Amendment and Waiver. This Agreement shall be binding upon the Parties and may not be modified in any manner, except by an instrument in writing of concurrent or subsequent date signed by duly authorized representatives of the Parties hereto. This Agreement is binding upon and shall inure to the benefit of the Parties and their respective agents, assigns, heirs, executors, successors and administrators. No delay or omission by the Company or Executive in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar to or waiver of any right on any other occasion."
"11\. Tax Provision. In connection with the separation benefits to be provided to Executive pursuant to the Employment Agreement, the Company shall withhold and remit to the tax authorities the amounts required under applicable law, and Executive shall be responsible for any and all applicable taxes with respect to such payments under applicable law. Executive acknowledges that Executive is not relying upon the advice or representation of the Company with respect to the tax treatment of any of the payments set forth in the Employment Agreement."
"(c)Upon a Termination due to Disability during the Term, contingent upon Executives execution, delivery and non-revocation of the Release Agreement, Executive shall be entitled to a lump sum payment equal to six months of COBRA premiums based on the terms of the Companys group health plan and Executives coverage under such plan as of the date of Termination (regardless of any COBRA election actually made by Executive or the actual COBRA coverage period under the Companys group health plan)."
"13.3Both during and after the Term, Executive shall not, except in the ordinary course of Executives employment with the Company, disclose any Confidential Information to any person, firm, business, company, corporation, association or any other entity for any reason or purpose whatsoever. Executive shall not make use of any Confidential Information for Executives own purposes or for the benefit of any person, firm, business, company, corporation or any other entity (except the Company) under any circumstances during or after the Term. Executive shall consider and treat as confidential all Confidential Information in any way relating to the Companys business and affairs, whether created by Executive or otherwise coming into Executives possession before, during, or after the Term. Executive shall secure and protect the Confidential Information in a manner designed to prevent all access and uses thereof contrary to the terms of this Agreement. Executive shall use Executives best efforts to assist the Company in identifying and preventing any use or disclosure of the Confidential Information contrary to this Agreement."
"D. Business Expenses. Throughout the term of Executives employment hereunder, Employer shall reimburse Executive for all reasonable and necessary travel, entertainment, and other business expenses that may be incurred in direct connection with the performance of Executives duties hereunder and in accordance with policies concerning travel and expense reimbursement adopted from time to time by Employer."
"2. Invention shall mean all ideas, discoveries, developments, inventions, improvements, innovations, technology, computer programs, software, products, methods, systems or plans, whether or not shown or described in writing or reduced to practice or use, and whether or not entitled to the protection of applicable patent, trademark, copyright, or similar laws, relating in any manner to any of Employers present or future products, services, manufacturing or research. "
"15. Venue and Jurisdiction. The exclusive venue and jurisdiction for any litigation concerning this Agreement shall be in the Circuit Court for the 11th Judicial District, St. Charles County, Missouri, unless that court lacks jurisdiction, in which case such action shall be brought in the United States District Court for the Eastern District of Missouri. Any of the foregoing courts shall have personal jurisdiction over Executive and jurisdiction over matters arising out of this Agreement, and Executive hereby irrevocably waives any and all objections to personal jurisdiction, venue or convenience in the aforementioned courts. "
"A. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A. In the event that any provision of this Agreement does not comply with the requirements of Section 409A, Employer, in exercise of its sole discretion and without consent of Executive, may amend or modify this Agreement in any manner to the extent necessary to meet the requirements of Section 409A."
"B. This Agreement is intended to comply with Section 409A or an exemption thereunder, and will be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral will be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement will be treated as a separate payment. Any payments to be made under this"
"C. Notwithstanding any other provision of this Agreement, if at the time of Executives termination of employment, Executive is a specified Executive, determined in accordance with Section 409A, any payments and benefits provided under this Agreement that constitute nonqualified deferred compensation subject to Section 409A that are provided to Executive on account of Executive s separation from service will not be paid until the first payroll date to occur following the six-month anniversary of Executives termination date (Specified Executive Payment Date). The aggregate amount of any payments that would otherwise have been made during such six-month period will be paid in a lump sum on the Specified Executive Payment Date without interest and, thereafter, any remaining payments will be paid without delay in accordance with their original schedule. If Executive dies during the six- month period, any delayed payments will be paid to Executives estate in a lump sum within thirty (30)calendar days after Executives death."
"D. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement or any document contemplated herein is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit."
"(c) Change of Control will mean (A) a merger, reorganization or consolidation in which (1) the Company is a constituent party or (2) a subsidiary of the Corporation is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Company or a subsidiary in which the holders of shares of capital stock of the Company outstanding immediately prior to such merger or consolidation continue to hold, as a result of their holdings immediately prior to the merger or consolidation, stock or other corresponding ownership interests representing a majority of the voting power of the surviving or resulting corporation or, if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation (provided that, for the purpose of this subsection, all shares of Company common stock issuable upon exercise of options outstanding immediately prior to such merger or consolidation or upon conversion of convertible securities outstanding immediately prior to such merger or consolidation will be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of common stock are converted or exchanged); (B) any sale or exchange of the capital stock of the Company by the stockholders of the Company in one transaction or a series of related transactions where more than fifty percent (50%) of the outstanding voting power of the Company is acquired by a person or entity or group of related persons or entities (other than pursuant to a recapitalization of the Company solely with its equity holders); or (C) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly-owned subsidiary of the Company."
"11. Severability. If any of the provisions of this Agreement will otherwise contravene or be invalid under the laws of any state, country or other jurisdiction where this Agreement is applicable but for such contravention or invalidity, such contravention or invalidity will not invalidate all of the provisions of this Agreement but rather it will be construed, insofar as the laws of that state, country or jurisdiction are concerned, as not containing the provision or provisions contravening or invalid under the laws of that state or jurisdiction, and the rights and obligations created hereby will be construed and enforced accordingly."
and Employee will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. Any reduction of benefits pursuant to this Section 16 shall be made on a pro-rata basis or such other methodology that complies with any applicable requirements under Section 409A of the Code.
"Employment. (a) I understand and acknowledge that my employment with the Company is for an unspecified duration and constitutes at-will employment. I acknowledge that this employment relationship may be terminated at any time, with or without good cause or for any or no cause, at the option either of the Company or myself, with or without notice."
"(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Companys part to maintain the confidentiality of such information and to use it only for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Companys agreement with such third party."
"Disability means the inability, due to illness, accident, injury, physical or mental incapacity or other condition, of the Employee to carry out effectively the Employees duties and obligations to the Company or to participate effectively and actively in the management of the Company for a period of at least ninety (90)consecutive days or for shorter periods aggregating at least one hundred twenty (120)days (whether or not consecutive) during any twelve-month period, provided that any days of paid vacation used by Employee in accordance with the Companys paid time off policy will not be included in either calculation. If the parties are unable to agree as to whether the Employee is suffering a disability, the Employee shall submit to a physical examination by a licensed physician who is selected by the Board (such examination shall take place within thirty (30)miles of the Companys office which the Employee regularly reports to unless the Company agrees to reimburse Employee for his out-of-pocket travel costs to attend any examination outside of such thirty (30)mile radius), the cost of such examination to be shared equally by the Company and the Employee, and the determination of such physician shall be determinative. Employee shall be deemed to be suffering a disability if Employee refuses to submit to such physical examination."
"(i) Base Salary. As of January1, 2017, the Employees base salary will be $324,480 (the Base Salary). Base Salary shall be paid by the Company in regular installments in accordance with the Companys general payroll practices and shall be subject to customary withholding, payroll and other taxes and deductions. The Employees performance shall be reviewed annually during the Companys first fiscal quarter of each fiscal year and the Employees Base Salary shall be subject to increase but not decrease in connection with such review."
"(b) Nonsolicitation. The Employee agrees that during the Restricted Period, the Employee will not, without written consent of the Company, directly or indirectly, including causing, encouraging, directing or soliciting any other Person to, contact, approach or solicit (except as so long as the Employee continues to be employed by the Company and makes such contact, approach or solicitation on behalf of the Company and excluding offspring of the Employee) for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any non-union Person who is or has been employed or retained in the operation of the Business by the Company or its Affiliates during the period commencing two years prior to the date hereof and ending on the date of termination of the Restricted Period, or induce, interfere with or solicit, or attempt to induce, interfere with or solicit, any Person that is a current or former customer, supplier or other business relation of the Company or its Affiliates into any business relationship that might harm the Business, including in any manner seeking to perform work (including by the Employee or in association with any Person) for any current or former customer of the Company or its Affiliates (1)that the Employee serviced on behalf of the Company or its Affiliates or was assigned by the Company or its Affiliates to provide services to on behalf of the Company, (2)with whom the Employee otherwise interacted with, dealt with, or developed a relationship with, on behalf of the Company during the Employees employment with the Company; or (3)about which the Employee has received Confidential Information during the Employees employment with the Company."
"(a) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this Agreement."
"(g) Remedies Upon Breach. In addition to, and not in limitation of, the provisions of Sections 3, 4 and 5 of this Agreement, the Employee agrees that any breach, or threatened breach, of this Agreement by the Employee could cause irreparable damage to the Company and that in the event of such breach the Company shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation of any obligations under this Agreement, without the necessity of proving irreparable damage or posting a bond."
"(l) 409A. This Agreement is intended to comply with and be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and the United States Department of Treasury regulations and other guidance issued thereunder (collectively, Section 409A). The parties acknowledge and agree that the interpretation of Section 409A and its application to the terms of this Agreement is uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company and its subsidiaries and affiliates to the Employee that would be deemed to constitute nonqualified deferred compensation within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i)Section 409A will not apply or (ii)compliance with Section 409A will be achieved. In no event whatsoever shall the Company or its Subsidiaries or Affiliates be liable for any tax, interest or penalties that may be imposed on the Employee by Section 409A of the Code or any damages for failing to comply with Section 409A."
"Notwithstanding the foregoing, a Change in Control shall not include (x) any transaction to which Executive consents in a writing specifically noting this provision of this Agreement, or (y) any transaction or series of transactions associated with the election by the Corporation to be taxed as a Subchapter S corporation under the Internal Revenue Code of 1986."
".The Executive agrees that, during the Employment Period, he will devote his primary business time, energy and best efforts to the business and affairs of the Company and its Affiliates, and not to engage, directly or indirectly, in any other business or businesses, whether or not similar to that of the Company or an Affiliate, except with the consent of the Board of Directors.The foregoing notwithstanding, the Parties recognize and agree that the Executive may engage in passive personal investments (such as real estate investments and rental properties) and other civic and charitable activities (such as continued service on non-profit and/or educational boards) that do not conflict with the business and affairs of the Company or interfere with the Executives performance of his duties hereunder without the necessity of obtaining the consent of the Board of Directors; provided, however, Executive agrees that if the Compensation Committee of the Board of Directors (the Compensation Committee) determines that continued service with one or more civic or charitable entities is inconsistent with the Executives duties hereunder and gives written notice to the Executive, he will promptly resign from such position(s)."
".A Forfeiture Event for purposes of this Agreement will occur if (a) Executive violates any of the covenants or restrictions contained in Sections5.1 through 5.8, or (b) the Company learns of facts within one (1) year following Executives Termination Date that, if such facts had been known by the Company as of the Termination Date, would have resulted in the termination of Executives employment hereunder for Cause, as determined by the Compensation Committee.In the event of a Forfeiture Event, within thirty (30) days of being notified by the Company in writing of the Forfeiture Event, Executive shall pay to the Company the full the amount of the Additional Payment received by Executive pursuant to Section4.1(b), net of any tax withholdings that were previously withheld from such payment.Executive specifically recognizes and affirms that this Section5.9 is a material part of this Agreement without which the Company would not have entered into this Agreement.Executive further covenants and agrees that should all or any part or application of this Section5.9 be held or found invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction or arbitrator in an action between Executive and the Company, then Executive shall promptly pay to the Company the amount of the Additional Payment, or such lesser amount as shall be determined to be the maximum reasonable and enforceable amount by a court or arbitrator, as applicable."
"This Agreement is intended to be written, administered, interpreted and construed in a manner such that no payment under this Agreement becomes subject to (1)the gross income inclusion under Section 409A or (2) the interest and additional tax under Section 409A (collectively, Section 409A Penalties), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of the Section 409A Penalties.For purposes of Section 409A, each payment that Executive may be eligible to receive under this Agreement shall be treated as a separate and distinct payment and shall not collectively be treated as a single payment.  If any provision of this Agreement would cause Executive to incur the Section 409A Penalties, the Company may, after consulting with Executive, reform such provision to comply with Section409A or to preclude imposition of the Section 409A Penalties, to the full extent permitted under Section 409A."
"means (a) the time period beginning on the Change in Control Date and ending on the last day of the twelve (12) consecutive month period that begins immediately following the last day of the month containing the Change in Control Date, or (b)following an Anticipatory Termination, the occurrence of a Change in Control (which Change in Control must qualify as a change in control event within the meaning of Section 409A) within the three-month period that is specified in the definition of Anticipatory Termination."
"The assignment to Executive of any duties that are materially inconsistent with Executives executive position, which in this definition includes status, reporting relationship to the Board of Directors, office, title, scope of responsibility over corporate level staff or operations functions, or responsibilities as an officer of the Company, or any other material diminution in Executives position, authority, duties, or responsibilities, other than (in any case or circumstance) an isolated and inadvertent action not taken in bad faith that is remedied by the Company within thirty (30) Business Days after Notice thereof to the Company by Executive; or"
"such event, and (2) provides the Company with at least thirty (30) Business Days to cure, correct or mitigate the Good Reason event so that it either (A) does not constitute a Good Reason event hereunder or (B) Executive specifically agrees, in writing, that after any such modification or accommodation by the Company, such event does not constitute a Good Reason event hereunder."
"Executive understands that he is, by entering into this Agreement, releasing the Released Parties, including the Company, from any and all claims he has, had or may ever have against them under federal, state or local laws, which have arisen on or before the execution date of this Agreement. ---|---|---|--- |"
", and (vi)only in the case of termination by the Company or the Executive on account of death or Disability, a pro-rated annual incentive bonus for the performance year of termination based on actual performance results for such performance year, determined by multiplying (x)the amount of such annual incentive bonus (if any) which would be due and payable for the full performance year in which such termination occurred had such termination event not occurred, by (y)a fraction, the numerator of which is the number of days from the beginning of the performance year through (and excluding) the date of termination, and the denominator of which is 365, which amount (if any) shall be paid in a lump sum in cash when annual incentive bonuses for such performance year are paid to other eligible senior executives of the Company (the Pro-rated Annual Incentive Bonus)."
"(f)The parties acknowledge and agree that damages that will result to the Executive for termination by the Company of the Executive's employment without Cause or by the Executive for Good Reason shall be extremely difficult or impossible to establish or prove, and agree that the amounts payable to the Executive under Section 9(a) or Section 9(d) beyond the Accrued Compensation shall constitute liquidated damages for any such termination. The Executive agrees that such liquidated damages shall be in lieu of all other claims that the Executive may make by reason of any such termination of employment. Any and all amounts payable and benefits or additional rights provided pursuant to this Agreement beyond the Accrued Compensation shall only be payable if the Executive delivers to the Company and does not revoke a general release of claims in favor of the Company in a form satisfactory to the Company. Such release must be executed and delivered (and no longer subject to revocation, if applicable) within 60 days following the Termination Date. Notwithstanding anything to the foregoing set forth herein, to the extent that the payment of any amount described in Section 9(a) or Section 9(d) constitutes nonqualified deferred compensation for purposes of Code Section 409A, any such payment scheduled to occur during the first 60 days following the Termination Date shall not be paid until the first regularly scheduled pay period following the 60th day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto."
"13.Arbitration. Except with respect to the remedies set forth in Section 10(f) hereof, any controversy or claim between the Company or any of its affiliates and the Executive arising out of or relating to this Agreement or its termination shall be settled and determined by a single arbitrator whose award shall be accepted as final and binding upon the parties. The American Arbitration Association, under its Employment Arbitration Rules, shall administer the binding arbitration. The arbitration shall take place in Columbus, Ohio. The Company and the Executive each waive any right to a jury trial or to a petition for stay"
"14.Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including the notice of termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by registered or certified mail, return receipt requested, postage prepaid, or upon receipt if overnight delivery service or facsimile is used, addressed as follows:"
"8.Non-Compete and Non-Solicitation Agreement. The Employee has previously executed the Non-Compete and Non-Solicitation Agreement of the Company and the Bank, a copy of which is attached hereto as Exhibit A (the ""Non-Compete and Non-Solicitation Agreement""). The Employee agrees that the Non-Compete and Non-Solicitation Agreement is incorporated herein by reference, remains in full force and effect and that the Employee will continue to abide by it. The Employee further agrees that if the Employee accepts the payments listed in Section 10.5 below, any termination of the Employee's employment will not constitute a termination without cause under the Non-Compete and Non-Solicitation Agreement regardless of the reason for the termination. "
"10.3Termination by Employee for Good Reason. The Employee shall have the right at any time to terminate employment under this Agreement for Good Reason (as defined herein) within ninety (90) days of learning of such Good Reason. For purposes of this Agreement, the term ""Good Reason"" means (a) any assignment to the Employee of any title or duties that are materially inconsistent with the Employee's present positions, titles, duties, or responsibilities, other than an insubstantial or inadvertent action which is remedied by the applicable Employer promptly after receipt of written notice from the Employee, or which is approved of by the Employee in writing; or (b) any failure by an Employer to comply in a material respect with any provision of Section 3, 4, 5, or 6, other than an insubstantial or inadvertent failure which is remedied by the applicable Employer promptly after receipt of written notice from the Employee. Any termination for Good Reason shall be effective upon the Employee giving the Employers written notice that the Employee is terminating employment, and setting forth in reasonable detail the basis for such termination, and that such termination is for Good Reason. Any such termination shall be effective upon the giving of such notice by the Employee, provided, however, that if the Employee has not previously notified the Employers of the Good Reason event, the Employers shall have thirty (30) days to remedy it and, if the applicable Employer fails to remedy it, the termination shall be effective at the end of the 30-day period. Notwithstanding the above, the assignment to the Employee of any title or duties at the Bank or the Company that the Employee has previously held or performed at the Bank or the Company, shall not be sufficient to constitute Good Reason for termination of employment by the Employee."
"(a)to the extent not previously paid, the Employee's Base Cash Compensation due through the effective date of the termination of employment, the cash equivalent of any accrued vacation days not taken as of such effective date (calculated based on the Employee's annual base salary attributable to each vacation day), and any out-of-pocket expenses for which the Employee is entitled to be reimbursed, and for which reimbursement has not yet been made; payable within ten (10) days of such effective date; plus"
24.Clawback. Any amounts payable under this Agreement are subject to any policy (whether in existence on the effective date of this Agreement or later adopted) established by the Company or the Bank providing for clawback or recovery of amounts that were paid to the Employee. The Company or the Bank will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation. 
"(B)a majority of members of the Responsible Corporations board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Responsible Corporations board of directors prior to the date of the appointment or election, provided, that for purposes of this paragraph, the term Responsible Corporation refers solely to the relevant corporation for which no other corporation is a majority shareholder."
"Employer shall employ Executive as its Vice President of Mine Operations, and Executive shall reside and work in Montana, and accepts employment under the terms and conditions set forth in this Agreement. Executive shall be responsible for performing the business and professional services typically performed by the Vice President of Mine Operations of any company, or as may reasonably be assigned to him by Employers Board of Directors (Board), subject to the general and customary supervision by the Board."
"The Employer shall be entitled to withhold from the Base Salary and any other amounts that it pays to Executive under this Agreement or otherwise, an amount sufficient to satisfy all federal, state and local income and employment tax withholding requirements with respect to any and all amounts paid to Executive by Employer."
"13.11 Code Section 409A. The intent of the parties is that payments and benefits under this Agreement (including all attachments, exhibits and annexes) be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Code Section 409A, Executive shall not be considered to have terminated employment with the Employer for purposes of this Agreement, and no payment shall be due to Executive under this Agreement, until Executive would be considered to have incurred a separation from service from the Employer within the meaning of Code Section 409A. Each amount to be paid or benefit to be provided to Executive pursuant to this Agreement that constitutes deferred compensation subject to Code Section 409A shall be construed as a separate identified payment for purposes of Code Section 409A. Notwithstanding anything to the contrary in this Agreement, to the extent that any payments to be made to the Executive upon his or her separation from service would result in the imposition of any individual penalty tax imposed under Code Section 409A by reason of Executives status as a specified employee, the payment shall instead be made on the first business day after the earlier of (i) the date that is six months following such separation from service and (ii) Executives death. To the extent that the Agreement provides for the reimbursement of specified expenses incurred by the Executive, such reimbursement shall be made in accordance with the provisions of the Agreement, but in no event later than the last day of the Executives taxable year following the taxable year in which the expense was incurred. The amount of expenses eligible for reimbursement or in-kind benefits provided by the Employer in any taxable year of the Executive shall not affect the amount of expenses or in-kind benefits to be reimbursed or provided in any other year (except in the case of maximum benefits to be provided under a medical reimbursement arrangement, if applicable)."
"f. Termination Upon Disability.In the event of the Disability (as defined below) of Executive during the Employment Period, the Company may terminate Executives employment hereunder by giving Executive not less than thirty (30) days prior written notice of the effective date of termination and in such event, the Company shall pay Executive any earned and accrued but unpaid installments of base salary and benefits due to Executive under Section 4 above (including, without limitation, unreimbursed expenses due under Section4) through the date of termination. In addition, in the event that this Agreement is terminated pursuant to the provisions of this Section 5(f), then the Company, in its sole discretion, shall either elect (x) by providing written notice to Executive within ten (10) business days of the last day of the calendar month in which the effective date of such termination occurs, that the provisions of 8(a) (other than the provisions of Section 8(a)(i)(B) relating to competing for or soliciting Business from any customer of the Company, the DMV Portfolio or the TCV Entities and Section 8(a)(i)(C) relating to the use of Confidential Information of the Company, the DMV Portfolio or the TCV Entities) shall expire on the effective date of such termination pursuant to this Section 5(f); or (y)subject to the provisions of Sections 14 and 26 below, within ten (10) business days of the last day of the calendar month in which the effective date of such termination occurs, pay Executive an amount equal to the Severance Amount. The Company acknowledges Executives preference to be paid the Severance Amount. The disposition of any PBRSUs and TBRSUs awarded to Executive prior to the date of termination shall be as set forth on Exhibit D. For purposes of Section 5(b) and 5(f) only, a customer shall mean any person or entity that is or was at any time during the Employment Period a current, past, prospective or targeted customer of the Company, the DMV Portfolio or the TCV Entities; provided, that a customer shall not include any natural person or any person or entity that placed or contemplated placing a classified advertisement with the Company, the DMV Portfolio or the TCV Entities. Within fifteen (15) business days of the last day of the calendar month in which the termination occurs, the Company shall deliver to Executive a list of all such customers as of the effective date of the termination of Executives employment with the Company. For purposes of this Agreement, Executives Disability means his total inability for a continuous period in excess of ninety (90) days to undertake responsibilities for the Company as a result of physical or mental illness or injury, with or without reasonable accommodation. Upon the request of either party hereto following written notice to the other, the Disability of the Executive will be determined by a medical doctor (the Examining Doctor) who shall be selected as follows: the Company and the Executive shall mutually select a doctor, or, if no agreement is reached, each party shall select a medical doctor, and those two medical doctors will select a third medical doctor who will be the Examining Doctor.The determination of the Examining Doctor as to whether or not the Executive has a Disability will be binding on both parties hereto.The Executive must submit to a reasonable number of examinations by the Examining Doctor, and the Executive hereby authorizes the disclosure and release to the Company of such determination and the results of such examinations. ---|--- |"
6. No Mitigation or Offset. Executive shall not be required to mitigate the amount of any payment provided for in Section 5 of this Agreement by seeking other employment or otherwise.The Company shall not be entitled to set off or reduce any severance payments owed to Executive under this Agreement by the amount of earnings or benefits received by Executive in future employment. ---|--- -7-
"8. Non-Competition and Non-Solicitation. ---|--- a.Non-Competition. In consideration of the numerous mutual promises contained in this Agreement between the Company and Executive, including, without limitation, those involving Confidential Information, and in order to protect the Companys, the DMV Portfolios and the TCV Entities Confidential Information, customer goodwill and business interests and to reduce the likelihood of irreparable damage which would occur in the event Confidential Information is provided to or used by a competitor of the Company, the DMV Portfolio or the TCV Entities, Executive agrees that, during the Non- Competition Term (as defined below), he shall not, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, owner, shareholder, stockholder, lender, partner, member, manager or in any other individual or representative capacity whatsoever, (i) without the prior written consent of the Company (which consent may be withheld in its sole discretion), (A) compete for or solicit Business (as defined below) for or on behalf of any person or business entity (other than the Company, the DMV Portfolio, the TCV Entities and their respective affiliates) located in or doing business in the Territory (as defined below); (B)compete for or solicit Business from any customer of the Company, the DMV Portfolio or the TCV Entities (or their respective successors by merger) except for the benefit of the Company, the DMV Portfolio, the TCV Entities and their respective affiliates; or (C)use in any competition, solicitation, or marketing effort any Confidential Information of the Company,"
"the DMV Portfolio or the TCV Entities except in furtherance of the business of the Company, the DMV Portfolio, the TCV Entities and their respective affiliates; or (ii) without the prior written consent of the Company (which consent shall not be unreasonably withheld) own, operate, participate in, undertake any employment with or have any interest in any entity (other than the Company and its affiliates or 2% or less of the issued and outstanding securities of any class of a publicly reporting company) engaged in the Business in the Territory. For purposes of this Section 8, the following definitions shall apply:"
The annual cash bonus opportunity is provided under the Companys 2008 Incentive Compensation Plan or any successor to such plan (the Plan).The Plan is designed to provide a competitive level of compensation to senior executives of the Company and is administered by the Compensation Committee of the Companys Board of Directors. Executives participation in the Plan is subject to the fully executed binding arbitration agreement that the Company has on file for Executive.
"Executive must be employed by the Company on the bonus payment date specified to be eligible to receive a bonus. Bonuses earned based on the annual bonus performance targets for any calendar year, if any, will be paid in February immediately following such calendar year, after the earnings release for such calendar year, based on the DMV Portfolios and the TCV Entities performance versus the annual bonus performance targets for such calendar year."
"Under the terms of the Companys 2008 Incentive Compensation Plan or any successor to such plan (the Plan), Executive will be awarded the following PBRSU grant for 2017.The grant will be effective on the date of grant and will be subject to the applicable terms and conditions of the Plan.Executives PBRSU grant is described below. Executives participation in the Plan is subject to the fully executed binding arbitration agreement that the Company has on file for Executive."
"within one of the tranches set forth in the chart above, then the number of PBRSUs earned for such calendar year will be determined using a straight line interpolation within such tranche. By way of example, if the DMV Portfolio achieves 95.5% of the Adjusted EBITDA Target for the applicable calendar year, then $275,000 of PBRSUs would be earned for such calendar year. The number of PBRSUs earned will be capped at 100% of the Adjusted EBITDA Target. ---|--- "
"In the event of a Change in Control as defined in the Plan, all outstanding TBRSUs then held by Executive that are unvested or subject to restrictions or forfeiture will automatically become fully vested and all restrictions and forfeiture provisions related thereto will lapse. Vested TBRSUs will be paid at the earliest practicable date that payment may be made without violating any applicable provisions of section 409A of the Internal Revenue Code."
"14.The arbitrator shall issue a written award, setting forth the legal and factual basis for his/her decision, within thirty (30) days after the conclusion of the arbitration hearing.The parties agree that the arbitrators award shall be final and binding on the parties, that the parties shall abide by and perform any award rendered by the arbitrator and that either party may seek a judgment enforcing the arbitrators award in any court of competent jurisdiction."
"For 2019, Executive achieved 95% of each of his Annual EBITDA Target and TCV Target, entitling him to (1) in the first quarter of 2020, a $250,000 Annual Bonus and the first payment of his 2020 TBRSU grant ($100,000 in the form of $60,000 in value of shares of Series A Common Stock and $40,000 in cash); (2) in the first quarter of 2021, the second payment of his 2020 TBRSU grant ($75,000 in the form of $45,000 in value of shares of Series A Common Stock and $30,000 in cash); and (3) in the first quarter of 2022, the third and final payment of his 2020 TBRSU grant ($75,000 in the form of $45,000 in value of shares of Series A Common Stock and $30,000 in cash). ---|---|---|--- |"
"(d) Upon termination of the Executives employment with the Company for any reason, the Executive will promptly deliver to the Company (i)all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents that are Proprietary Information, including all physical and digital copies thereof, and (ii)all other Company property (including, without limitation, any personal computer or wireless device and related accessories, keys, credit cards and other similar items) which is in his possession, custody or control."
"7. Injunctive Relief. The Executive recognizes and acknowledges that a breach of the covenants contained in Section6 will cause irreparable damage to the Company and its goodwill, the exact amount of which will be difficult or impossible to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly, the Executive agrees that in the event of a breach of any of the covenants contained in Section6, in addition to any other remedy which may be available at law or in equity, the Company will be entitled to specific performance and injunctive relief."
"16. No Inconsistent Actions. The parties hereto shall not voluntarily undertake or fail to undertake any action or course of action inconsistent with the provisions or essential intent of this Agreement. Furthermore, it is the intent of the parties hereto to act in a fair and reasonable manner with respect to the interpretation and application of the provisions of this Agreement."
"1\. Employment. The Employees employment hereunder shall commence on the Closing Date (as defined in such agreement) of the transactions contemplated by that certain Transaction Agreement dated as of August19, 2015, by and among CI (FBM) Holdings LLC, CI FBM AIV Mini-Master L.P., FBM AIV Blocker Inc., FBM AIV Blocker II Inc., FBM Intermediate Inc., FBM Intermediate Holdings LLC, CI Capital Investors II, L.P., CI Capital Investors II (AIV-A), L.P., CI Capital Investors II (AIV), L.P., and LSF9 Cypress Holdings LLC (the Purchase Agreement), or such other date as may be mutually agreed between the Parties (the Effective Date) and end on the date the Employees employment is terminated pursuant to Section3 hereof (the Employment Period). In the event that the Purchase Agreement is terminated in accordance with its terms prior to the Closing of the transactions contemplated thereby, this Agreement shall immediately terminate and be null and void and without effect. During the Employment Period, the Employee will devote his full business time and use his best efforts to advance the business and welfare of the Company and its subsidiaries and affiliates and will not engage in (i)any other employment or business activities, or (ii)any other activities for any direct or indirect remuneration that would be harmful or detrimental to the business and affairs of the Company or that would materially interfere with his duties hereunder. The foregoing, however, shall not preclude the Employee from serving on civic or charitable boards or committees, managing personal or family investments, or engaging in such other activities as the Board of Directors of the Company or its equivalent (such entity, the Board) may approve from time to time, so long as such activities do not materially interfere with the performance of the Employees responsibilities hereunder."
"(c) Termination by the Company without Cause or Resignation For Good Reason. If the Employees employment shall be terminated by the Company without Cause (and not by reason of Employees death or Disability), or by the Employee for Good Reason, then, in addition to the Accrued Rights, the Company shall (subject to the Employees execution, within twenty-one (21)days following receipt, of a waiver and general release of claims in substantially the form attached hereto as Exhibit A (the Release), and such Release becoming effective and irrevocable in accordance with its terms within thirty (30)days following the Date of Termination):"
"(ii) pay to the Employee the annual bonus earned by the Employee pursuant to Section2(b) for the calendar year that includes the Date of Termination (based on actual performance during such year), which amount shall be pro- rated to reflect the number of days that the Employee was employed by the Company during such calendar year and which shall be payable at the same time as such annual bonuses are paid to executives generally; and"
"Following the Employees termination of employment by the Company without Cause (and not by reason of Employees death or Disability), or by the Employee for Good Reason, except as set forth in this Section3(c), the Employee shall have no further rights to any compensation or any other benefits under this Agreement."
"(b) Subject to Section 4.3(a), during the Employment Term, the Executive shall be eligible to participate in the Companys 2016 Equity Incentive Plan or any successor plan, subject to the terms of the 2016 Equity Incentive Plan or successor plan, as determined by the Board or the Compensation Committee, in its discretion."
"5\. Termination of Employment. The Employment Term, and the Executive's employment hereunder may be terminated by either the Company or the Executive at any time and for any reason; provided that, unless otherwise provided herein, either party shall be required to give the other party at least 30 days advance written notice of any termination of the Executive's employment. Upon termination of the Executive's employment during the Employment Term, the Executive shall be entitled to the compensation and benefits described in this Section 5 and shall have no further rights to any compensation or any other benefits from the Company or any of its affiliates."
"Termination of the Executive's employment shall not be deemed to be for Cause unless and until the Company delivers to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the Board, finding that the Executive has engaged in the conduct described in any of (i)-(ix) above."
"(b) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (""COBRA""), the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the first day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company's making payments under this Section 5.2(b) would violate the nondiscrimination rules applicable to non- grandfathered plans under the Affordable Care Act (the ""ACA""), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 5.2(b) in a manner as is necessary to comply with the ACA."
"14\. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Executive and the Company. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege."
"Information for any purpose or for Executives personal benefit other than in the course and within the scope of Executives employment. Executive agrees to sign and abide by the terms and conditions of Companys Confidential Information and Intellectual Property Protection Agreement, a copy of which is attached hereto as Schedule B and incorporated as though fully set forth herein."
"(1)A lump sum payment, less appropriate deductions, equal to two (2)times the sum of (i)Executives average annual base salary for the last three (3)years (including the year of termination); and (ii)Executives average annual performance-based cash bonus received for the prior three (3)years (not including the year of termination), such payment to be made on the sixtieth (60th) day following Executives termination date."
"(a)Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein either shall either be exempt from the requirements of Code Section 409A (Section 409A) or shall comply with the requirements of such provision. Notwithstanding any provision of this Agreement to the contrary, if Executive is a specified employee within the meaning of Section 409A, any payments or arrangements due upon a termination of Executives employment, if any, under any arrangement that constitute a nonqualified deferral of compensation within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), shall be delayed and paid or provided on the earlier of (i)the date which is six months after Executives separation from service (as such term is defined in Section 409A and the regulations and other published guidance thereunder) for any reason other than death; and (ii)the date of Executives death."
" | d. | Subjective Performance. ---|---|--- The target amount for each measure for the 2017 calendar year is set forth on Appendix 1 to this schedule. Should Company fail to achieve the target amount for the above performance measures, Executives annual performance-based bonus, if any, shall be based upon Companys evaluation of the percentage of the target amount achieved during the year. Conversely, should Companys performance exceed the target amount for the above performance measures, Executives annual performance-based bonus may exceed the bonus amount stated above, based upon Companys evaluation of the percentage of the over- achievement of such target amount(s). All bonuses will be paid by March15, 2018, following the completion of Companys year-end audit. If Executive leaves Company voluntarily, or is terminated with Cause, before December31, 2017, Executive will not be eligible for a bonus. If Executive is terminated by Company during 2017 without Cause, Executives bonus calculation will be based on Companys annual results (calculated as though Executive were still an employee) and a prorated bonus will be paid considering the days in 2017 in which Executive was employed by Company divided by 365."
"2. | Title; Duties ---|--- (a) Executive shall be employed as Chief Executive Officer. Executive shall report to the CEO of Playa Resorts Management, LLC, which shall have the final and exclusive authority to direct, control and supervise the activities of Executive. Executive shall perform such services consistent with his position as may be assigned to him from time to time by the CEO. Executive is employed in a fiduciary relationship with Playa Management. In addition to the foregoing, Executive shall perform duties consistent with his appointment from time to time to any other executive positions with Playa Management or any of Playa Managements related or affiliated entities (the Playa Affiliates). For the avoidance of doubt, Executive may be appointed, removed and reappointed to or from executive and directorship positions of any Playa Affiliate and any such action, other than a removal of Executive as an executive of Playa Management shall not constitute a termination of Executive under this Agreement."
receive equity awards for service to Playa Management (the EIP). The terms and amounts of any EIP awards granted to Executive shall be determined by the Playa Board in its sole and absolute discretion. Payments of amounts (if any) under the EIP shall be structured to provide liquidity at such times and in such amounts as is necessary to permit Executive to pay on a timely basis all income and employment taxes due by reason of any incentive compensation payable to him under the EIP.
"(B) A Change in the Ownership of Assets of Playa shall occur on the date that any Person acquires, or Persons Acting as a Group acquire (or has or have acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such Person or Persons) assets from Playa that have a total gross fair market value equal to or more than eighty-five percent (85%)of the total gross fair market value of all of the assets of Playa immediately before such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of Playa, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets."
"(B) Persons shall be considered to be Persons Acting as a Group (or a Group) if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock or similar business transaction with Playa. If a Person owns equity interests in both Playa and the other corporation that enters into a merger, consolidation, purchase or acquisition of"
"(i) Payments upon Separation. Notwithstanding any contrary payment provisions of this Section6, all payments in connection with a separation from service under this Agreement shall be made as of the latest of the following dates: (i)the sixtieth (60th)day following the termination of Executives employment and his delivery without revocation of the executed Separation Agreement; (ii)to the extent required under Section11(b) below, the first business day that is six (6)months following Executives separation from service; or (iii)the payment date required under the terms of any deferred compensation plan subject to the requirements of Code Section409A. Amounts otherwise payable prior to these dates shall be delayed pursuant to this provision. Executive shall not retain the ability to elect the tax year of any payments under the Separation Agreement and to the extent any payment could be made in one (1)of two (2)tax years, such payment shall be made in the later tax year. All payments under this Agreement shall be subject to all applicable federal, state and local tax withholding."
"(e) Return of Proprietary Information. Executive acknowledges that all the Proprietary Information pre-existing, used or generated during the course of his employment by Playa Management is the property of Playa Management and the Playa Affiliates, as the case may be, and Executive holds and uses such as a trustee for Playa Management or the Playa Affiliates and subject to Playa Managements and the Playa Affiliates sole control. Executive shall deliver to Playa Management or the Playa Affiliates, as applicable, all documents and other tangibles (including diskettes and other storage media) containing the Proprietary Information (x)at any time upon request by the Playa Management Board or the applicable Playa Affiliate during his Employment Period and (y)immediately upon termination of the Employment Period."
"10. | Arbitration ---|--- (a) Any disputes or claims between Playa Management and Executive in any way concerning Executives employment, the termination of his employment hereunder, a breach of this Agreement, its enforcement or any other matter relating thereto shall be submitted at the initiative of either party to mandatory arbitration in the Commonwealth of Virginia before a single arbitrator under the Federal Arbitration Act and pursuant to the Commercial Arbitration Rules of the American Arbitration Association, or its successor, then in effect. The decision of the arbitrator shall be rendered in writing, shall be final, and may be entered as a judgment in any court in the Commonwealth of Virginia or elsewhere. The parties irrevocably consent to the jurisdiction of the federal and state courts located in Virginia for this purpose. Each party shall be responsible for its or his own costs incurred in such arbitration and in enforcing any arbitration award, including attorneys fees and expenses."
"(b) Section409A Compliance. Notwithstanding anything to the contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement shall be provided in accordance with the requirements of Treasury Regulation Section1.409A-3(i)(1)(iv), such that any in-kind benefits and reimbursements provided under this Agreement during any calendar year shall not affect in- kind benefits or reimbursements to be provided in any other calendar year, other than an arrangement providing for the reimbursement of medical expenses referred to in Code Section105(b), and any in-kind benefits and reimbursements shall not be subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely submitted, reimbursement payments shall be promptly made to Executive following such submission, but in no event later than December31st of the calendar year following the calendar year in which the expense was incurred. In no event shall Executive be entitled to any reimbursement payments after December31st of the calendar year following the calendar year in which the expense was incurred."
"(c) Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective (i)upon personal delivery, (ii)upon deposit with the United States Postal Service, by registered or certified mail, postage prepaid or (iii)in the case of facsimile transmission or delivery by nationally recognized overnight deliver service, when received, addressed as follows:"
"b. Payments upon Separation. All payments in connection with a separation from service under this Agreement shall be made as of the latest of the following dates: (i)the sixtieth (60th)day following the termination of Executives employment and his delivery without revocation of the executed Agreement; (ii)to the extent required under Section11(a) of the Employment Agreement, the first business day that is six (6)months following Executives separation from service; or (iii)the payment date required under the terms of any deferred compensation plan subject to the requirements of the Internal Revenue Code (Code) Section409A. Amounts otherwise payable prior to these dates shall be delayed pursuant to this provision. Executive shall not retain the ability to elect the tax year of any payments under this Agreement and to the extent any payment could be made in one (1)of two (2)tax years, such payment shall be made in the later tax year. All payments under this Agreement shall be subject to all applicable federal, state and local tax withholding."
"c. Section409A Compliance. Notwithstanding anything to the contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement shall be provided in accordance with the requirements of Treasury Regulation Section1.409A-3(i)(1)(iv), such that any in-kind benefits and reimbursements provided under this Agreement during any calendar year shall not affect in- kind benefits or reimbursements to be provided in any other calendar year, other than an arrangement providing for the reimbursement of medical expenses referred to in Code Section105(b), and any in-kind benefits and reimbursements shall not be subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely submitted, reimbursement payments shall be promptly made to Executive following such submission, but in no event later than December31st of the calendar year following the calendar year in which the expense was incurred. In no event shall Executive be entitled to any reimbursement payments after December31st of the calendar year following the calendar year in which the expense was incurred."
"8\. Validity. Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement."
"(a) Base Salary. During the Term, the Company shall pay the Employee a base salary (the Base Salary) at the annualized rate of $275,000, which shall be subject to customary withholdings and authorized deductions and be payable in equal installments in accordance with the Companys customary payroll practices in place from time to time. The Employees Base Salary and title shall be subject to, on an annual basis beginning in January 2018, periodic review and adjustments as the Board and/or the Compensation Committee of the Board (the Compensation Committee) shall in its/their discretion deem appropriate."
"Section 3.2. Expense Reimbursement. The Company shall reimburse the Employee during the Term, in accordance with the Companys expense reimbursement policies in place from time to time, for all reasonable out-of-pocket business expenses incurred by the Employee in the performance of her duties hereunder. In order to receive such reimbursement, the Employee shall furnish to the Company documentary evidence of each such expense in the form required to comply with the Companys policies in place from time to time."
"(d) If the Employees employment is terminated pursuant to Section 4.1(a), the Employee shall, in full discharge of all of the Companys obligations to the Employee, be entitled to receive, and the Companys sole obligation to the Employee under this Agreement or otherwise shall be to pay or provide to the Employee, the following:"
"(b) Disability means a determination by the Company in accordance with applicable law that as a result of a physical or mental injury or illness, the Employee has been unable to perform the essential functions of her job with or without reasonable accommodation for a period of (i) ninety (90) consecutive days; or (ii) one hundred twenty (120) days during any twelve (12) month period."
"Section 5.11. Assignment. This Agreement shall inure to the benefit of the Company and its successors and assigns (including, without limitation, the purchaser of all or substantially all of its assets) and shall be binding upon the Company and its successors and assigns. This Agreement is personal to the Employee, and the Employee shall not assign or delegate her rights or duties under this Agreement, and any such assignment or delegation shall be null and void."
"(i) Change in the Ownership of the Company. A change in the ownership of the Company shall occur on the date that any one person, or more than one person acting as a group (as defined in clause (iii) below), acquires ownership of capital stock of the Company that, together with capital stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the capital stock of the Company. However, if any one person or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the capital stock of the Company, the acquisition of additional capital stock by the same person or persons shall not be considered to be a change in the ownership of the Company. An increase in the percentage of capital stock owned by any one person, or persons acting as a group, as a result of a transaction in which the Company acquires capital stock in the Company in exchange for property will be treated as an acquisition of stock for purposes of this paragraph."
"1\. Employment Period. The Company hereby agrees to employ the Employee as its Chief Executive Officer, and the Employee, in such capacity, agrees to provide services to the Company for the term beginning on the Effective Date (the Commencement Date) and ending on January 31, 2019, unless earlier terminated in accordance with this Agreement (the Initial Term)."
"(a) In the event that (A) Employee terminates his employment for Good Reason in accordance with Section 4(d) above, or (B) the Company terminates his employment in any manner other than pursuant to Section 4(a), Section 4(b) or Section 4(c) above, in any case, but subject to the Employees compliance with the provisions contained in Sections 5(d), 5(e), the Company shall pay to the Employee: (.i) any accrued but unpaid Salary for services rendered to the date of termination; and (ii) an amount equal to the Salary at the time of such termination, payable for the remainder of the then-current term (i.e., the Initial Term or any Renewal Term)."
"(ii) Employee recognizes that Employees services hereunder are of a special, unique, unusual, extraordinary and intellectual character giving them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages, and in the event of a breach of this Agreement by Employee (particularly, but without limitation, with respect to the provisions hereof relating to the exclusivity of Employees services), the Company shall, in addition to all other remedies available to it, be entitled to equitable relief by way of an injunction and any other legal or equitable remedies. Anything to the contrary herein notwithstanding, the Company may seek such equitable relief in any federal or state court in New York and Employee hereby submits to exclusive jurisdiction in those courts for purposes of this Section (6)(c)(ii). Such exclusive jurisdiction of courts in New York shall not affect a courts ability to award equitable relief as provided in Section 7(a) of this Agreement."
"15\. Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. Sections and section headings contained in this Agreement are for reference purposes only, and shall not affect in any manner the meaning or interpretation of this Agreement. Whenever the context requires, references to the singular shall include the plural and the plural the singular."
"(iv) In the event the Company determines, or Roth Capital, as representative of the several underwriters of the IPO, notifies the Company in writing that it has decided, not to proceed with the IPO, the Company will promptly, but in any event by 5 p.m., Pacific time, on the next Business Day following such determination or receipt of notice by the Company, notify the Purchaser that the IPO has been discontinued."
"(b) Organization and Standing. Each of the Company and the Subsidiaries has been duly organized, is validly existing and in good standing (where such concept is applicable) as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Company and the Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. Exhibit 3.01 to the Registration Statement on Form S-1 (File No.333 220451) filed by the Company with the SEC under the Securities Act on September13, 2017, contains a true and complete copy of the Certificate of Incorporation of the Company, as amended and in effect as of the date of this Agreement. Exhibit 21.01 to the Registration Statement lists as of the date of this Agreement, and will list as of the Effective Date, each subsidiary of the Company, as defined in Rule405 under the Securities Act."
"(iii) Neither the Company nor any of the Subsidiaries is, or as of the Closing Date after giving effect to the offer and sale of ClassA Shares sold in the IPO and the Shares and the application of the proceeds therefrom as described under Use of Proceeds in the Draft Preliminary Prospectus will be, (A)an investment company or a company controlled by an investment company within the meaning of the U.S. Investment Company Act of 1940 and the rules and regulations of the SEC thereunder or (B)a business development company (as defined in Section2(a)(48) of the U.S. Investment Company Act of 1940)."
"expected to result in a Material Adverse Effect, all other applicable anti- bribery statutes and regulations, and the Company and the Subsidiaries maintain policies and procedures designed to ensure, and that are reasonably expected to continue to ensure, continued compliance with the U.S. Foreign Corrupt Practices Act of 1977 and other applicable anti-bribery statutes and regulations."
"(n) Contracts. There are no contracts or other documents required to be described in the Draft S-1 Amendment or the Draft Preliminary Prospectus, or filed as exhibits to the Registration Statement, that are not described and filed as required. The statements made in the Draft Preliminary Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute accurate summaries of the terms of such contracts and documents in all material respects. Neither the Company nor any of the Subsidiaries has knowledge that any other party to any such contract or other document has any intention not to render full performance in all material respects as contemplated by the terms thereof. Except as described in the Draft Preliminary Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement."
"(e) Regulation S Status. The Purchaser is not a U.S. person (as such term is defined in Regulation S under the Securities Act). At the time of the origination of discussion regarding the offer and sale of the Shares and the date of the execution and delivery of this Agreement, the Purchaser was at all times outside of the United States."
" | (i) | reason of any investigation made by or on behalf of an Indemnified Party (including by any of its representatives or advisors) or by reason of the fact that an Indemnified Party or any of its representatives or advisors knew or should have known that any representation or warranty is, was or might be inaccurate or by reason of an Indemnified Partys waiver of any condition set forth in Section5 or 6; ---|---|--- "
"(b) Judgment Currency. The obligation of the Company in respect of any sum due to the Purchaser or any other Indemnified Party under this Agreement shall, notwithstanding any judgment in a currency other than U.S. dollars or any other applicable currency (the Judgment Currency), not be discharged until the first Business Day, following receipt by such Indemnified Party of any sum adjudged to be so due in the Judgment Currency, on which (and only to the extent that) such Indemnified Party may in accordance with normal banking procedures purchase U.S. dollars or any other applicable currency with the Judgment Currency. If the U.S. dollars or other applicable currency so purchased are less than the sum originally due to such Indemnified Party under this Agreement, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Indemnified Party against such Loss. If the U.S. dollars or other applicable currency so purchased are greater than the sum originally due to such Indemnified Party under this Agreement, such Indemnified Party agrees to pay to the Company an amount equal to the excess of the U.S. dollars or other applicable currency so purchased over the sum originally due to such Indemnified Party under this Agreement."
"waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement of this Agreement or thereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties to this Agreement irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Delaware state or Federal court. The parties by this Agreement consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section9(e), shall be valid and sufficient service thereof. Except as otherwise expressly provided in this Agreement, any and all remedies in this Agreement expressly conferred upon a party under this Agreement shall be deemed cumulative with and not exclusive of any other remedy conferred by this Agreement or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other. The parties to this Agreement agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to specific performance, an injunction or injunctions, or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in accordance with this Section9(a)."
"notified, (ii)if sent by electronic mail, then (A)when sent, if sent between 9 a.m. and 5p.m., Pacific time, on a Business Day or (B)as of 9 a.m. Pacific time on the next Business Day, if sent at any other time, (iii)if sent by U.S. registered or certified mail, return receipt requested, postage prepaid, the earlier of actual receipt and the fifth Business Day after having been deposited with the U.S. Postal Service, or (iv)if sent via an internationally recognized overnight courier, freight prepaid, specifying next or two Business Day delivery, with written verification of receipt, two Business Days after deposit with such courier. All communications shall be sent to a party to this Agreement at their respective addresses set forth below or to such other street or email address as subsequently modified by written notice given in accordance with this Section9(e):"
"(n) Other Private Placement. To the extent that the Closing has not occurred and this Agreement has not been terminated in accordance with Section8, the Company shall not, without the prior written consent of the Purchaser, enter into, amend or supplement any private placement arrangement or agreement in connection with the sale and purchase of the securities of the Company with any third-party financial investor (Other Placements), including any amendment or supplement to the Stock Purchase Agreement dated as , 2017 among the Company, Xunxin (Shanghai) Capital Co., Limited, Sino IC and David H. Wang (the Sino IC Agreement). The Company shall provide to the Purchaser any agreements related to such Other Placements promptly after the date of execution and delivery thereof (including the Sino IC Agreement and any other agreements signed in connection therewith)."
"(c) Ninebell understands that no public market now exists for the Shares and that ACM has made no assurances that a public market will ever exist for the Shares, and that the Shares may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except as set forth herein."
"after deposit with an internationally recognized courier, freight prepaid, specifying one- or two-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on the signature page, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section5.7. If notice is given to ACM, a copy shall also be sent to Mark L. Johnson at K&L Gates LLP, State Street Financial Center, One Lincoln Street, Boston, Massachusetts 02111."
"5.12 Entire Agreement. This Agreement, including the Lock-Up Agreement delivered pursuant to Section2(c), and the Corollary Agreement constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof and thereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties, including the Share Exchange Agreement dated as of March23, 2017 and the Share Exchange Agreement dated as of August22, 2017 among the parties, are expressly canceled."
"WHEREAS, the Company has confidentially submitted to the U.S. Securities and Exchange Commission (the SEC) a draft registration statement on Form S-1 (the Registration Statement) for its initial public offering (IPO) of units (the Public Units) at a price of $10.00 per Public Unit, each comprised of one Class A ordinary share of the Company, par value $0.0001 per share (the Class A Share(s)), and one-half of one redeemable warrant, where each whole redeemable warrant is exercisable to purchase one Class A Share at an exercise price of $11.50 per share (the Warrant(s));"
"(i) (A) Transfers by the Sponsor to any of its employees, officers or directors and (B) Transfers by any employee, officer or director of the Sponsor (other than Omar M. Asali) or such persons permitted transferees, in one or more transactions, of up to 20.0% of the Sponsor Shares beneficially owned by such person immediately following the Business Combination Closing;"
"As used in this Agreement, Sponsor-Affiliate shall mean any director, officer or employee of the Sponsor who is also serving in any such role or position at the Company (including Omar M. Asali). For the avoidance of doubt, the restrictions on Transfer set forth in the first sentence of Section 6 and the first sentence of Section 7(b) of this Agreement shall not apply to the non-management directors of the Company or their respective successors to the Companys board of directors (the Board)."
"For so long as the restrictions on Transfer set forth in the first sentence of this Section 7(b) shall apply, the Sponsor shall provide the Purchaser with notice of any Transfers to be made pursuant to clause (ii) or (iii) of the second sentence of this Section 7(b), which notice shall be provided at least ten (10) calendar days before consummation of any such Transfer; provided, that such notice shall not be required if, in the opinion of the Company, acting reasonably and in good faith having received the advice of counsel, provision of such notice will require public disclosure in advance of any public disclosure otherwise required in connection with such Transfer or violate applicable law (including applicable securities laws); and provided, further, that, in the opinion of counsel of the Sponsor, if shortening the advance notice period or the Purchasers agreement to treat the notice of Transfer confidentially would eliminate the requirement for public disclosure or the violation of applicable law described in the immediately preceding provision, then subject to applicable law or any material agreement binding on the Company and/or the Sponsor, the Purchaser shall be given the opportunity to agree to so shorten the advance notice period or treat the notice of Transfer confidentially. The Forward Contract Parties agree to treat receiving such notice and any trading in the securities of the Company (or securities derivative thereof) in compliance with applicable law (including applicable securities laws)."
"(ii) The representations and warranties of the Purchaser set forth in Section 2 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the FPS Closing, as applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on the Purchaser or its ability to consummate the transactions contemplated by this Agreement;"
"(n) Expenses. Each of the Company and the Purchaser will bear its own costs and expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal counsel and accountants. The Company shall be responsible for the fees of its transfer agent, stamp taxes and all of The Depository Trust Companys fees associated with the issuance of the Securities and the securities issuable upon conversion or exercise of the Securities."
"""Articles"" | means these articles of association of the Company. ---|--- ""Audit Committee"" | means the audit committee of the Company formed pursuant to Article 41.2 hereof, or any successor audit committee. ""Auditor"" | means the person for the time being performing the duties of auditor of the Company (if any). ""Business Combination"" | means a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination, with one or more businesses or entities (the target business), which Business Combination: (i) must occur with one or more target businesses that together have an aggregate fair market value of at least 80% of the assets held in the Trust Fund (as defined in the below paragraph) (excluding the deferred underwriting commissions and taxes payable on the income earned on the Trust Fund) at the time of the agreement to enter into the Business Combination; and (ii) must not be effectuated with another blank check company or a similar company with nominal operations. ""business day"" | means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City. ""Class A Share"" | means a Class A ordinary share of a par value of US$0.0001 in the share capital of the Company. ""Class B Share"" | means a Class B ordinary share of a par value of US$0.0001 in the share capital of the Company. ""Class C Share"" | means a Class C ordinary share of a par value of US$0.0001 in the share capital of the Company. "
"| (c)| the holder of a Class C Share shall not (in respect of such Class C Share) have the right to receive notice of, attend at or vote as a Member at any general meeting of the Company, but may vote at a separate class meeting convened in accordance with the Articles (provided, that the consent of the Directors shall also be required for any alteration of the rights attaching to the Class C Shares). ---|---|--- "
"| 7.5| Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the Designated Stock Exchange may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company. ---|---|--- "
"| 9.2| Subject to the provisions of the Statute, and, where applicable, the rules of the Designated Stock Exchange and/or any competent regulatory authority, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member. For the avoidance of doubt, repurchases or redemptions of Shares in the circumstances described at Articles 8.1(a), 8.1(b) and 8.1(c) above shall not require further approval of the Members. ---|---|--- "
"| 16.2| If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. ---|---|--- "
"| 22.3| A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. ---|---|--- "
"| 22.7| The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. ---|---|--- "
"| 28.2| All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine by resolution. ---|---|--- "
"| 31.4| A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. ---|---|--- "
"| 31.6| The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. ---|---|--- "
"| 31.7| The Directors may elect a chairman of their board and determine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within fifteen minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairman of the meeting. ---|---|--- "
"| 38.2| The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. ---|---|--- "
"| 42.5| If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor. ---|---|--- "
"| 43.1| Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or to his address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). Notice may also be served in accordance with the requirements of the Designated Stock Exchange. ---|---|--- "
"| 49.5| Except for the withdrawal of interest to pay income taxes, if any, none of the funds held in the Trust Fund shall be released from the Trust Fund until the earlier of an IPO Redemption pursuant to Article 49.3, a repurchase of Shares by means of a tender offer pursuant to Article 49.2(b), a distribution of the Trust Fund pursuant to Article 49.4(a) or an amendment under Article 49.4(b). In no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Fund. ---|---|--- "
"Indebtedness means, without duplication and with respect to the Company, all: (a) all obligations for borrowed money or accounts payable; (b) obligations evidenced by any note, debenture or other similar instrument or debt security; (c) obligations under swaps, hedges or similar instruments; (d) obligations in respect of letters of credit and bankers acceptances issued for the account of the Company; (e) obligations arising from checks in transit, uncleared checks or unreconciled cash; (f) obligations for the deferred purchase price of property or services or the acquisition of a business or portion thereof or insurance premium financing, in each case, whether contingent or otherwise, as obligor or otherwise (including any so called earn-out or similar payments or obligations; (g) obligations created or arising under any conditional sale or other title retention agreement with respect to acquired property; (h) obligations, contingent or otherwise, arising from deferred compensation arrangements; (i) obligations under capitalized leases; (j) obligations secured by any Encumbrance on any of the Companys assets; (k) any liability (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted) for Taxes; (l) obligations for Bonuses; (m) obligations to any Related Person; (n) the amount of any deferred revenue and customer deposits; (o) all accrued interest, prepayment premiums, penalties, expenses or other amounts due related to any of the foregoing; and (p) guarantees by the Company of any obligations of the types described in clauses (a) through (o) above."
"Release means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture)."
"Section 2.04 Closing. Subject to the terms and conditions of this Agreement, the purchase and sale of the Shares contemplated hereby shall take place at a closing (the Closing) to be held at 10:00 a.m., Eastern Standard Time, no later than two business days after the last of the conditions to Closing set forth in ARTICLE VII have been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), at the offices of Dickinson Wright PLLC, 2600 W. Big Beaver Rd., Suite 300, Troy, MI 48084, or at such other time or on such other date or at such other place as Seller and Buyer may mutually agree upon in writing (the day on which the Closing takes place being the Closing Date)."
"Except as set forth in the correspondingly numbered Section of the Disclosure Schedules and subject to the transfer of the Additional Assets, Seller represents and warrants to Buyer that the statements contained in this ARTICLE III are true and correct as of the date hereof; it being understood that the following representations and warranties assume and are based upon the assignment and transfer to the Company of the Additional Assets as set forth in the Recitals so that such Additional Assets are assets and Contracts of the Company."
"(c) There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the capital stock of the Company or obligating Seller or the Company to issue or sell any shares of capital stock of, or any other interest in, the Company. The Company does not have outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of the Shares."
"(b) There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against or affecting the Company or any of its properties or assets. The Company is in compliance with the terms of each Governmental Order set forth in Section 3.17(b) of the Disclosure Schedules. To Sellers knowledge, no event has occurred or circumstances exist that may constitute or result in (with or without notice or lapse of time) a violation of any such Governmental Order."
"(i) Neither the Seller nor the Company is aware of or reasonably anticipates, as of the Closing Date, any condition, event or circumstance concerning the Release or regulation of Hazardous Materials that might, after the Closing Date, prevent, impede or materially increase the costs associated with the ownership, lease, operation, performance or use of the business or assets of the Company as currently carried out."
"(f) Each Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liabilities to Buyer, the Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event. The Company has no commitment or obligation and has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise."
"(f) Seller is not a foreign person as that term is used in Treasury Regulations Section 1.1445-2. The Company is not, nor has it been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(a) of the Code. The Company has not been a distributing corporation or a controlled corporation in connection with a distribution described in Section 355 of the Code. The Company is not, and has not been, a party to, or a promoter of, a reportable transaction within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b). There is currently no limitation on the utilization of net operating losses, capital losses, built-in losses, tax credits or similar items of the Company under Sections 269, 382, 383, 384 or 1502 of the Code and the Treasury Regulations thereunder (and comparable provisions of state, local or foreign Law)."
"Section 3.25 Full Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading."
"(e) Seller acknowledges that a breach or threatened breach of this Section 5.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond)."
"(d) If any consent, approval or authorization necessary to preserve any right or benefit under any Contract to which the Company is a party is not obtained prior to the Closing, Seller shall, subsequent to the Closing, cooperate with Buyer and the Company in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable. If such consent, approval or authorization cannot be obtained, Seller shall use its reasonable best efforts to provide the Company with the rights and benefits of the affected Contract for the term thereof, and, if Seller provides such rights and benefits, the Company shall assume all obligations and burdens thereunder."
"Section 8.02 Indemnification By Seller. Subject to the other terms and conditions of this ARTICLE VIII, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, the Buyer Indemnitees) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:"
"(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);"
"(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);"
"pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Partys right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.06) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim."
"| 2.4.2.| The remaining Twenty Five Thousand ($25,000) will be released immediately upon the filing of the Companys quarterly report on Form 10-Q for the period ended September 30, 2017 (the Immediate Report) to the Seller, and in accordance with the wire transfer instructions for the Seller set forth on Exhibit E, provided that such Immediate Report is timely filed with the Securities and Exchange Commission (SEC or the Commission). In the event that the Immediate Report is not timely filed with the SEC, Purchasers shall notify the Escrow Agent in writing to release $25,000 to the Purchaser or as otherwise instructed in the release notice within 5 business days upon the occurrence of such failure. The Escrow Agent shall notify the Seller within 2 business days upon receipt of the release notice. The Seller shall notify the Purchasers and the Escrow Agent in writing within 5 business days upon the receipt of such notification from the Escrow Agent if it considers itself has satisfied its obligation under Section 3.14 of this Agreement and thus disputes such release. If the Seller timely notifies the Escrow Agent about the dispute, the Escrow Agent shall withhold $25,000 until the dispute is resolved and the Seller and Purchasers have to come to a mutual agreement about the release of $25,000. If the Seller does not or fails to notify the Escrow Agent within 5 business days of the receipt of the notice from the Escrow Agent, the Escrow Agent shall promptly release $25,000 pursuant to the release notice from the Purchasers. ---|---|--- "
"3.11. Private Offering. No registration of the Shares, pursuant to the provisions of the Securities Act of 1933, as amended, or any state securities or blue sky laws, will be required by the sale of the Shares in the manner contemplated in Section 1 herein. Seller agrees that neither he or she, nor anyone acting on his or her behalf, shall offer to sell the Shares or any other securities of the Company so as to require the registration of the Shares pursuant to the provisions of the Securities Act of 1933, as amended, or any state securities or blue sky laws."
"(r) Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option and restricted stock agreements under any equity compensation plan of the Company."
"(pp) Notice of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, reasonably be expected to become a Disqualification Event relating to any Issuer Covered Person, in each case of which it is aware."
"(f) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchasers assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchasers assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchasers representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future."
"4.6 Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchasers consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non- public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company."
"4.7 Use of Proceeds. Except as set forth in the Prospectus Supplement, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Companys debt (other than payment of trade payables in the ordinary course of the Companys business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations."
"4.15 Registration Statement. As soon as reasonably practicable (and in any event within 45 calendar days after the Closing Date), the Company shall file a registration statement on Form S-3 (or Form S-1 if Form S-3 is not available) providing for the issuance and resale by the Purchasers of the Warrant Shares issued and issuable upon exercise of the Warrants. The Company shall use commercially reasonable efforts to cause such registration to become effective 90 days following the Closing Date if not reviewed by the Commission (or 120 days following the Closing Date if reviewed by the Commission) and to keep such registration statement effective at all times until (a) the Warrant Shares are sold under such registration statement or pursuant to Rule 144 under the Securities Act, (b) the Warrant Shares may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 under the Securities Act, and (c) the three (3) year anniversary of the date of the issuance of the Warrants, whichever is the earliest to occur. Subject to the accuracy of the information provided by the Purchasers to the Company, the Company shall ensure that such registration statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. After the date hereof and during any period in which a prospectus or prospectus supplement relating to any of the Securities subject to registration under this Section 4.15 is required to be delivered by any Purchaser pursuant to the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act), (i) the Company will notify the Purchasers promptly of the time when any subsequent amendment to such registration statement, other than documents incorporated by reference, has been filed with the Commission or has become effective or any subsequent supplement to the prospectus regarding such Securities or any of the Purchasers or any subsequent amendment to the prospectus or any supplement or amendment to the prospectus supplement has been filed with the Commission and of any comment letter from the Commission or any request by the Commission for any amendment or supplement to such registration statement, any amendment to the prospectus, any supplement to the prospectus that relates to the Securities subject to such registration statement under this Section or any of the Purchasers, or any amendment or supplement to the prospectus supplement, provided that no notification of the Purchasers shall be required if such amendment, supplement, or comment, or request would not, and would not seek, to limit the rights of the Purchasers or the Warrant Shares, (ii) the Company will prepare and file with the Commission, promptly upon a Purchasers request, any amendments or supplements to such registration statement, prospectus or prospectus supplement that, in the Companys reasonable opinion, may be necessary in connection with any resale of the Warrant Shares by such Purchaser (provided, however, that the failure of such Purchaser to make such request shall not relieve the Company of any obligation or liability hereunder), (iii) the Company will not file any amendment or supplement to a registration statement, prospectus or prospectus supplement, other than documents incorporated by reference, relating to the Warrant Shares subject to registration under this Section 4.15 unless a copy of the Selling Stockholder and Plan of Distribution sections thereof have been submitted or made available to each Purchaser within a reasonable period of time before the filing and no Purchaser has reasonably objected in writing thereto (provided, however, that (A) the failure of any Purchaser to make such objection shall not relieve the Company of any obligation or liability hereunder, and (B) the Company has no obligation to provide a Purchaser any advance copy of such filing or to provide such Purchaser an opportunity to object to such sections of the filing if such filing does not name such Purchaser or specifically discuss the Warrant Shares subject to registration under this Section 4.15 as contemplated hereby) and the Company will furnish or make available to each Purchaser at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into a registration statement, prospectus or prospectus supplement, except for those documents available via EDGAR, and (iv) the Company will cause each amendment or supplement to the prospectus or prospectus supplement, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act. All fees and expenses incident to the performance of or compliance with, this Section 4.15 by the Company shall be borne by the Company whether or not any Warrant Shares are sold pursuant to a registration statement. Neither the Company nor any of its security holders (other than the Purchasers in such capacity pursuant hereto) may include securities of the Company in any registration statements other than the Warrant Shares. The Company shall not file any other registration statement until the date that all Warrant Shares are registered pursuant to a registration statement. Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Purchaser or Affiliate of a Purchaser as an underwriter without the prior written consent of such Purchaser."
"4.17 Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Warrant and Warrant Shares as required under Regulation D. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Warrant and Warrant Shares for, sale to the Purchasers at the Closing under applicable securities or Blue Sky laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser."
"5.20 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement."
"B. Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement three tranches of Convertible Notes of the Company, in the forms attached hereto as Exhibit A-1, A-2, and A-3, in the aggregate principal amount of $300,000 (together with any Notes(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the terms thereof, the Notes), convertible into common shares of the Company (the Common Shares), upon the terms and subject to the limitations and conditions set forth in such Notes; and"
"c. Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyers compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities."
c. No Integration. The Company shall not make any offers or sales of any security (other than the Securities) under circumstances that would require registration of the Securities being offered or sold hereunder under the 1933 Act or cause the offering of the Securities to be integrated with any other offering of securities by the Company for the purpose of any stockholder approval provision applicable to the Company or its securities.
"l. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required."
"(i) As payment in full for the 8,000,000 Sponsor Warrants being purchased under this Agreement, Purchaser shall pay $8,000,000 (the Purchase Price), by wire transfer of immediately available funds or by such other method as may be reasonably acceptable to the Company, to the trust account (theTrust Account) maintained by Continental Stock Transfer& Trust Company, acting as trustee (Continental), or into an escrow account maintained by Ellenoff Grossman & Schole LLP(EG&S),counsel for the Company, at least one (1) business day prior to the date of effectiveness of the Registration Statement."
"(f)Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, or notice to, any federal, state or local governmental authority (each, a Governmental Entity) on the part of the Company is required in connection with the issuance and sale of the Shares and Warrants to the Purchasers, except such filings as have been made prior to the date hereof, and such additional post-Closing filings as may be required to comply with applicable state and federal securities laws."
"(i)Compliance with Law and Charter Documents; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation or default of any provisions of its articles of incorporation, bylaws or similar organizational document, as applicable. The Company and its Subsidiaries have materially complied and are currently in material compliance with all applicable judgments, decrees, statutes, laws, rules, regulations and orders of the United States of America and all states thereof, foreign countries and other governmental bodies and agencies having jurisdiction over the Companys and its Subsidiaries business or properties, and neither the Company nor any of its Subsidiaries has received notice that it is in material violation of any statute, rule or regulation of any governmental authority applicable to it. Except as set forth in the SEC Documents, neither the Company nor any of its Subsidiaries is in default (and there exists no condition which, with or without the passage of time or giving of notice or both, would constitute a default) in any material respect in the performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them are bound or by which the properties of any of them are bound. The Company and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their business as described in the SEC Documents, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and the Company has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit."
"(ii)Neither the Company nor any of its Subsidiaries has any material liabilities or material obligations arising from the release of any Materials of Environmental Concern (as defined below) into the environment. Materials of Environmental Concern shall mean any chemicals, pollutants or contaminants, hazardous substances (as such term is defined under CERCLA), solid wastes and hazardous wastes (as such terms are defined under the Resource Conservation and Recovery Act), toxic materials, oil or petroleum and petroleum products or any other material subject to regulation under any Environmental Law."
"(d)Investment Experience. The Purchaser understands that the purchase of the Units involves substantial risk. The Purchaser has experience as an investor in securities of companies and acknowledges that it can bear the economic risk of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of this investment in the Securities and protecting its own interests in connection with this investment, and has so evaluated the merits and risks of such investment."
"(b)Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before such Closing, and shall have obtained all approvals, consents and qualifications necessary to complete the sale of the Units described herein."
"12. INVALIDITY. If any paragraph of this Agreement shall be held or declared to be void, invalid or illegal, for any reason, by any court of competent jurisdiction, such provision shall be ineffective but shall not in any way invalidate or effect any other clause, Paragraph, section or part of this Agreement."
"j. No Short Sales. Buyer/Holder, its successors and assigns, agree that so long as the Note remains outstanding, the Buyer/Holder shall not enter into or effect short sales of the Common Stock or hedging transaction which establishes a short position with respect to the Common Stock of the Company. The Company acknowledges and agrees that upon delivery of a Conversion Notice by the Buyer/Holder, the Buyer/Holder immediately owns the shares of Common Stock described in the Conversion Notice and any sale of those shares issuable under such Conversion Notice would not be considered short sales."
"b. Authorization; Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this Agreement, the Note and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement, the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note and the issuance and reservation for issuance of the Conversion Shares issuable upon conversion or exercise thereof) have been duly authorized by the Companys Board of Directors and no further consent or authorization of the Company, its Board of Directors, or its shareholders is required, (iii) this Agreement has been duly executed and delivered by the Company by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company accordingly, and (iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms."
"a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Company and Buyer waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorneys fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law."
"e. Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer."
"j. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby."
"Common Stock Equivalents means any securities of the Company or the Subsidiaries that would entitle the holder thereof to acquire Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock."
"(b) Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Companys ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a Material Adverse Effect); provided that a change in the market price or trading volume of the Common Stock alone shall not be deemed, in and of itself, to constitute a Material Adverse Effect. No Proceeding has been commenced in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification."
"(p) Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the Registration Statement, the Prospectus and the Prospectus Supplement and which the failure to so have could have a Material Adverse Effect (collectively, the Intellectual Property Rights). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the Registration Statement, the Prospectus and the Prospectus Supplement, a written notice that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(aa) Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Companys assets exceeds the amount that will be required to be paid on or in respect of the Companys existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Companys assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof the outstanding secured or unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, Indebtedness means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Companys consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness."
"(c) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants, it will be an accredited investor as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act."
"The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchasers right to rely on the Companys representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby."
"4.8 Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a Purchaser Party) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Partys representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel (which opinion is furnished to the Company), a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Companys prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is solely attributable to (A) any Purchaser Partys breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents or (B) any violations by such Purchaser of federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law."
"5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .pdf format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof."
"5.20 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement."
"| 4.| Purchaser's Representations and Warranties ---|---|--- | (a)| As of the date hereto the Purchaser is purchasing the Shares for its own account and not with a present view towards the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the Securities Act of 1933, as amended (the ''Act''). ---|---|--- | (b)| The Purchaser is an ""accredited investor', as that term is defined in Rule 501(a) of ---|---|--- Regulation D promulgated under the Act"
"'""IHESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AS AMENDED (THE ""ACT''), OR SECURITIES LAws OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE-OF AN EFEBCTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT OR SUCH LAWS AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM THE ACT OR SUCH LAWS."""
"(a) Purchaser has full right, capacity and power to execute and deliver this Agreement and any other agreements and instruments contemplated hereby to which Purchaser is a party, and to perform his obligations hereunder and thereunder. This Agreement and all other agreements and instruments contemplated hereby to which Purchaser is or will become a party have been (or, when executed, will be) duly executed and delivered by or on behalf of Purchaser and, assuming due execution by other parties, constitute legal, valid and binding agreements, enforceable against Purchaser in accordance with their terms, except as such enforceability may be limited by (i)general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors rights and remedies and (ii)public policy underlying any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification, contribution or exculpation."
"(e) Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchasers investment. Purchaser is a sophisticated investor, has relied upon independent investigations made by Purchaser and, to the extent believed by Purchaser to be appropriate, Purchasers representatives, including Purchasers own professional, tax and other advisors, and is making an independent decision to invest in the Securities."
"Purchaser has been furnished with such documents, materials and information that Purchaser deems necessary or appropriate for evaluating an investment in the Company, and Purchaser has read carefully such documents, materials and information and understands and has evaluated the types of risks involved with a purchase of the Securities. Purchaser has not relied upon any representations or other information (whether oral or written) from the Company or its respective stockholders, directors, officers or affiliates, or from any other person or entity, in connection with Purchasers investment in the Securities. Purchaser acknowledges that the Company has not given any assurances with respect to the tax consequences of the acquisition, ownership and disposition of the Securities."
"(f) Purchaser has had, prior to Purchasers execution of this Agreement, the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the transactions contemplated by this Agreement and Purchasers investment in the Securities and to obtain additional information necessary to verify the accuracy of any information furnished to Purchaser or to which Purchaser had access. Purchaser is satisfied with respect to any of the foregoing matters."
(j) Purchaser understands that (i)the Securities must be held indefinitely and Purchaser must continue to bear the economic risk of the investment in the Securities unless such Share is subsequently registered under the Securities Act or an exemption from such registration is available; (ii)Purchaser is prepared to bear the economic risk of this investment for an indefinite period of time; and (iii)the Securities are characterized as restricted securities under the U.S. federal securities laws.
"(k) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby."
"WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended (the Securities Act), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement."
"Exempt Issuance means the issuance of (a) shares of Common Stock or options to employees, officers, directors or consultants (consistent with past practice) of the Company pursuant to any stock incentive plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or conversion of any Securities issued hereunder and/or other securities exercisable or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, believed by the Company to be an operating company or an owner of an asset in a business synergistic with the business of the Company, and (d) issuances of shares pursuant to the Companys existing Red Sun Trade Partners Program."
"(o)Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP and, the payment of which is not delinquent. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance, except for matters which are not expected to cause a Material Adverse Effect."
"(p)Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all material patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have would have a Material Adverse Effect (collectively, the Intellectual Property Rights). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement except where such action is not expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing material infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(w)Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer."
"(bb)Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim."
"(a)Organization; Authority. Such Purchaser is either an individual or an entity duly incorporation or formation, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law."
(b)Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting such Purchasers right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
"4.3Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction."
"4.5Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an Acquiring Person under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers."
"4.13Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Document. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise."
"WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the ""Securities Act"" or ""1933 Act""), and Rule 506 promulgated thereunder by the United States Securities and Exchange Commission (the ""SEC""), the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company a 12% Convertible Note of the Company, in the form attached hereto as Exhibit A, in the principal amount of $75,000.00 (together with any note(s) issued in replacement thereof or as interest thereon or otherwise with respect thereto in accordance with the terms thereof, the ""Note""), convertible into shares (""Conversion Shares"") of common stock, $0.001 par value per share (the ""Common Stock""), of the Company, upon the terms and subject to the limitations and conditions set forth in such Note."
"a) Investment Purpose. Purchaser is acquiring the Securities for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws; provided, however, by making the representations herein, Purchaser does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act. The Purchaser is acquiring the Securities hereunder in the ordinary course of its business. The Purchaser does not presently have any agreement or understanding, directly or indirectly, with any person to distribute any of the Securities in violation of applicable securities laws."
"a) Organization and Qualification. The Company and each of its Subsidiaries (as defined below), if any, is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, with full power and authority (corporate and other) to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. Schedule 3(a) sets forth a list of all of the Subsidiaries of the Company and the jurisdiction in which each is incorporated. The Company and each of its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which its ownership or use of property or the nature of the business conducted by it makes such qualification necessary except where the failure to be so qualified or in good standing would not have a Material Adverse Effect. ""Material Adverse Effect"" means any material adverse effect on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries, if any, taken as a whole, or on the transactions contemplated hereby or by the agreements or instruments to be entered into in connection herewith. ""Subsidiaries"" means any corporation or other organization, whether incorporated or unincorporated, in which the Company owns, directly or indirectly, any equity or other ownership interest."
"b) Authorization; Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this Agreement and the Note and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement and the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note and the issuance and reservation for issuance of the Conversion Shares issuable upon conversion and exercise thereof) have been duly authorized by the Company's Board of Directors and no further consent or authorization of the Company, its Board of Directors, or its shareholders is required, (iii) this Agreement has been duly executed and delivered by the Company by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company accordingly, and (iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note and each of such instruments will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms."
"g) SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the ""SEC Documents""). Upon written request the Company will deliver to the Purchaser true and complete copies of the SEC Documents, except for such exhibits and incorporated documents. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (""1934 Act"" or ""Exchange Act""), and none of the SEC Documents, at the time they were filed with the SEC, 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 light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the 1934 Act."
"m) Certain Transactions. Except for arm's length transactions pursuant to which the Company or any of its Subsidiaries makes payments in the ordinary course of business upon terms no less favorable than the Company or any of its Subsidiaries could obtain from third parties and other than the grant of any stock options disclosed on Schedule 3(c), none of the officers, directors, or employees of the Company is presently a party to any transaction with the Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner."
"q) Brokers. The Company hereby represents and warrants that it has not hired, retained or dealt with any broker, finder, consultant, person, firm or corporation in connection with the negotiation, execution or delivery of this Agreement or the transactions contemplated hereunder. The Company covenants and agrees that should any claim be made against Purchaser for any commission or other compensation by any broker, finder, person, firm or corporation, including without limitation, the Broker, based upon the Company's engagement of such person in connection with this transaction, the Company shall indemnify, defend and hold Purchaser harmless from and against any and all damages, expenses (including attorneys' fees and disbursements) and liability arising from such claim. The Company shall pay the commission of the Broker, to the attention of the Broker, pursuant to their separate agreement(s) between the Company and the Broker."
"a) Within three (3) business days (such third business day being the ""Unlegended Shares Delivery Date"") after the business day on which the Company has received (i) a notice that Conversion Shares, or any other Common Stock held by the Purchaser has been sold pursuant to a registration statement or Rule 144 under the 1933 Act, (ii) a representation that the prospectus delivery requirements, or the requirements of Rule 144, as applicable and if required, have been satisfied, (iii) the original share certificates representing the shares of Common Stock that have been sold, and (iv) in the case of sales under Rule 144, customary representation letters of the Purchaser and, if required, Purchaser's broker regarding compliance with the requirements of Rule 144, the Company at its expense, (y) shall deliver, and shall cause legal counsel selected by the Company to deliver to its transfer agent (with copies to Purchaser) an appropriate instruction and opinion of such counsel, directing the delivery of shares of Common Stock without any legends including the legend set forth in Section 4(h) above (the ""Unlegended Shares""); and (z) cause the transmission of the certificates representing the Unlegended Shares together with a legended certificate representing the balance of the submitted Common Stock certificate, if any, to the Purchaser at the address specified in the notice of sale, via express courier, by electronic transfer or otherwise on or before the Unlegended Shares Delivery Date."
"b) The Company understands that a delay in the delivery of the Unlegended Shares later than the Unlegended Shares Delivery Date could result in economic loss to the Purchaser. As compensation to Purchaser for such loss, the Company agrees to pay late payment fees (as liquidated damages and not as a penalty) to the Purchaser for late delivery of Unlegended Shares in the amount of $1,000.00 per business day after the Unlegended Shares Delivery Date. If during any three hundred and sixty (360) day period, the Company fails to deliver Unlegended Shares as required by this Section for an aggregate of thirty (30) days, then Purchaser or assignee holding Securities subject to such default may, at its option, require the Company to redeem all or any portion of the shares subject to such default at a price per share equal to the greater of (i) 200% of the most recent closing price of the Common Stock or (ii) a fraction in which the numerator is the highest closing price of the Common Stock during the aforedescribed thirty (30) day period and the denominator of which is the lowest conversion price during such thirty (30) day period, multiplied by the conversion price or exercise price, as the case may be (""Unlegended Redemption Amount""). The Company shall pay any payments incurred under this Section in immediately available funds upon demand."
f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited to a change in the 1934 Act reporting status of the Company or the failure of the Company to be timely in its 1934 Act reporting obligations.
"d) 144 Default. In the event commencing twelve (12) months after the Closing Date and ending twenty-four (24) months thereafter, the Purchaser is not permitted to resell any of the Conversion Shares without any restrictive legend or if such sales are permitted but subject to volume limitations or further restrictions on resale as a result of the unavailability to Subscriber of Rule 144(b)(1)(i) under the 1933 Act or any successor rule (a ""144 Default""), for any reason except for Purchasers' status as an Affiliate or ""control person"" of the Company, or as a result of a change in current applicable securities laws, then the Company shall pay such Purchaser as liquidated damages and not as a penalty an amount equal to two percent (2%) of the value of Conversion Shares (based on the closing sale of the Common Stock) subject to such 144 Default during the pendency of the 144 Default of each thirty day period thereafter (or portion thereof)."
"Each of the undersigned subsidiaries of the Company jointly and severally, absolutely, unconditionally and irrevocably, guarantees to the Purchaser and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company when due (whether at the stated maturity, by acceleration or otherwise) of all amounts due under, and all other obligations under, the Note. Each such subsidiary's liability under this Guaranty shall be unlimited, open and continuous for so long as this Guaranty remains in force."
" | (B) | a screen shot sent by the transfer agent for the ClassA Shares of the Company, depicting the certificate or certificates to be issued to represent the Shares. Such transfer agent shall, by 5 p.m., Pacific time, on the Closing Date, deposit such certificate or certificates with a courier or other agent identified by the Purchaser for delivery in accordance with instructions provided to the Company at least two Business Days prior to the Closing Date. ---|---|--- (v) On the Closing Date, other purchasers in any private placement shall fulfill their respective purchase obligations under their respective Stock Purchase Agreements with the Company with regards to the purchase of ClassA Shares thereunder."
"(b) Organization and Standing. Each of the Company and the Subsidiaries has been duly organized, is validly existing and in good standing (where such concept is applicable) as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Company and the Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. Exhibit 3.01 to the Registration Statement on Form S-1 (File No.333 220451) filed by the Company with the SEC under the Securities Act on September13, 2017, contains a true and complete copy of the Certificate of Incorporation of the Company, as amended and in effect as of the date of this Agreement. Exhibit 21.01 to the Registration Statement lists as of the date of this Agreement, and will list as of the Effective Date, each subsidiary of the Company, as defined in Rule405 under the Securities Act."
"(g) Financial Statements. The consolidated financial statements (including the related notes) included in the Draft Preliminary Prospectus comply as to form in all material respects with the requirements of RegulationS-X under the Securities Act and present fairly in all material respects the financial condition, results of operations and cash flows of the Company and the Subsidiaries at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved. BDO China Shu Lun Pan Certified Public Accountants LLP are independent public accountants with respect to the Company and the Subsidiaries, as required by the Securities Act."
"(i) The Company and the Subsidiaries maintain internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States, including internal accounting controls sufficient to provide reasonable assurance that (A)transactions are executed in accordance with managements general or specific authorization, (B)transactions are recorded as necessary to permit preparation of the Companys consolidated financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C)access to the their assets is permitted only in accordance with managements general or specific authorization, and (D)the recorded accountability for their assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences."
"(b) Acquisition of Shares. The Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent and not with a view to the resale or distribution of any interest in the Shares. The Purchaser has no present intention of selling, granting any participation in or otherwise distributing any interest in the Shares. The Purchaser does not presently have any contract, undertaking, agreement or arrangement with any individual or entity to sell, transfer or grant participations to either such individual or entity or any third party, with respect to the Shares."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AND (A)THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF OR (B)THE HOLDER OF THESE SECURITIES IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE904 UNDER THE U.S. SECURITIES ACT OF 1933. NO TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL, IN A FORM SATISFACTORY TO ACM RESEARCH, INC., THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE U.S. SECURITIES ACT OF 1933."
"(e) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon (i)personal delivery to the party to be notified, (ii)if sent by electronic mail, then (A)when sent, if sent between 9 a.m. and 5p.m., Pacific time, on a Business Day or (B)as of 9 a.m. Pacific time on the next Business Day, if sent at any other time, (iii)if sent by U.S. registered or certified mail, return receipt requested, postage prepaid, the earlier of actual receipt and the fifth Business Day after having been deposited with the U.S. Postal Service, or (iv)if sent via an internationally recognized overnight courier, freight prepaid, specifying next or two Business Day delivery, with written verification of receipt, two Business Days after deposit with such courier. All communications shall be sent to a party to this Agreement at their respective addresses set forth below or to such other street or email address as subsequently modified by written notice given in accordance with this Section10(e):"
"(i)the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);"
"(u)Application of Takeover Protections. As of the Closing Date, the Company will have taken all necessary action, if any, in order to render inapplicable as of the Closing Date and thereafter any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Companys certificate of incorporation (or similar charter documents) or the laws of the State of Nevada that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Companys issuance of the Securities and the Purchasers ownership of the Securities."
"(c)Pledge. The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an accredited investor as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledge or secure Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. At such Purchasers expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the registration statement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling stockholders thereunder."
"(e)Legend Removal Default. In addition to such Purchasers other available remedies, provided the conditions for legend removal set forth in Section 4.1(c) exist, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of Underlying Shares (based on the higher of the actual purchase price of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(d), $10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchasers right to pursue actual damages for the Companys failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief."
"4.6Indemnification of Purchasers. Subject to the provisions of this Section 4.6, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a Purchaser Party) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Partys representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Companys prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Partys breach of its representations, warranties or covenants under the Transaction Documents. The indemnification required by this Section 4.6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law."
"5.11Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .pdf format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof."
"(e) Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchasers investment. Purchaser is a sophisticated investor, has relied upon independent investigations made by Purchaser and, to the extent believed by Purchaser to be appropriate, Purchasers representatives, including Purchasers own professional, tax and other advisors, and is making an independent decision to invest in the Securities. Purchaser has been furnished with such documents, materials and information that Purchaser deems necessary or appropriate for evaluating an investment in the Company, and Purchaser has read carefully such documents, materials and information and understands and has evaluated the types of risks involved with a purchase of the Securities. Purchaser has not relied upon any representations or other information (whether oral or written) from the Company or its respective stockholders, directors, officers or affiliates, or from any other person or entity, in connection with Purchasers investment in the Securities. Purchaser acknowledges that the Company has not given any assurances with respect to the tax consequences of the acquisition, ownership and disposition of the Securities."
(j) Purchaser understands that (i)the Securities must be held indefinitely and Purchaser must continue to bear the economic risk of the investment in the Securities unless such Share is subsequently registered under the Securities Act or an exemption from such registration is available; (ii)Purchaser is prepared to bear the economic risk of this investment for an indefinite period of time; and (iii)the Securities are characterized as restricted securities under the U.S. federal securities laws.
"THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (SECURITIES ACT), OR UNDER ANY STATE SECURITIES LAWS (BLUE SKY LAWS), AND MAY NOT BE OFFERED OR SOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT, AND AS REQUIRED BY BLUE SKY LAWS IN EFFECT AS TO SUCH TRANSFER, UNLESS AN EXEMPTION FROM SUCH REGISTRATION UNDER STATE AND FEDERAL LAW IS AVAILABLE"
"a. Sale and Issuance of the Shares. Subject to the terms and conditions of this Agreement, Invesco agrees to cause the Funds to purchase at the Closing (as defined below), and the Company agrees to sell and issue the Funds at the Closing, the Shares in exchange for the aggregate purchase price of Twenty Million United States Dollars (US $20,000,000.00) (the Purchase Price)."
"a. Each instrument evidencing the Shares, the Warrant and the Warrant Shares which may be purchased or acquired hereunder and any other securities issued upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event (unless no longer required in the opinion of the counsel for the Company or Evofem, as applicable) shall be imprinted with a legend substantially in the following form:"
"a. The obligation of Invesco to consummate the transactions contemplated herein at the Closing is subject to the satisfaction on or before the date of the Closing of the following conditions, all or any of which may be waived in writing by Invesco as to its obligation to consummate the transaction so contemplated:"
"vi. Certificates of the CEOs. With respect to Invescos exercise of the Warrant, (A)the Company shall have delivered to Invesco a written certificate executed by the Chief Executive Officer of the Company certifying that each of the conditions to the consummation of the Merger set forth in Sections 6.1 and 6.3 of the Merger Agreement, other than those conditions that by their nature or the terms of the Merger Agreement are to be satisfied at the consummation thereof, has been satisfied (theCompany CEO Certificate), and (B)Evofem shall have delivered to Invesco a written certificate executed by the Chief Executive Officer of the Company certifying that each of the conditions to the consummation of the Merger set forth in Sections 6.1 and 6.2 of the Merger Agreement, other than those conditions that by their nature or the terms of the Merger Agreement are to be satisfied at the consummation thereof, has been satisfied (the Evofem CEO Certificate). With respect to Invescos obligation to pay the Purchase Price, the Merger shall have been consummated such that the Effective Time shall have occurred."
" --- INVESCO Invesco Asset Management Limited, as agent for and on behalf of the Invesco Perpetual High Income Fund, a sub fund of the Invesco Perpetual UK Investment Series Investment Company with Variable Capital (ICVC) (Company No. IC000231), and the Invesco Perpetual Income Fund, a sub fund of the Invesco Perpetual UK 2 Investment Series Investment Company with Variable Capital (ICVC) (Company No. IC000221) By: /s/ Colin Fitzgerald (Signature) Colin Fitzgerald - Director"
"2.3Capitalization. The authorized capital stock of the Company, as of October 2, 2017, consisted of 50,000,000 shares of Common Stock, $1.00 par value per share, of which 6,932,570 shares were issued and outstanding and 5,000,000 shares of Preferred Stock, no par value per share, none of which is outstanding. All of the issued and outstanding shares of Common Stock have been duly authorized, validly issued, fully paid, and nonassessable and have been issued and sold in compliance in all material respects with all federal and state securities laws. None of the outstanding shares of Common Stock was issued and sold in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its Subsidiaries other than those described in the SEC Documents. The descriptions of the Companys equity incentive plans, and the equity awards granted thereunder, set forth in the SEC Documents accurately and fairly present in all material respects the information required to be shown with respect to such plans and awards. The Companys Amended and Restated Articles of Incorporation, as amended (the Articles of Incorporation), as in effect on the date hereof, and the Companys Amended and Restated Bylaws (the Bylaws) as in effect on the date hereof, are each filed as exhibits to the SEC Documents and no amendment or modification of either the Articles of Incorporation or the Bylaws, each as in effect on the date hereof, has been approved by, or has been presented to, the shareholders or the Board of Directors of the Company. There are no securities or instruments issued by or to which the Company is a party containing anti- dilution or similar provisions that will be triggered by the issuance of the Shares."
"(f)Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Bank and each of its Subsidiaries has properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents, applicable federal and state law and regulation and common law. Neither the Bank nor any of its Subsidiaries or, to the knowledge of the Company, any of their respective directors, officers or employees has committed any breach of trust or fiduciary duty with respect to any such fiduciary account that would reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, the accountings for each such fiduciary account are true and correct and accurately reflect the assets of such fiduciary account."
"(c)Neither the Company nor any Subsidiary is (i) in violation of its Articles of Incorporation, Bylaws, or other organizational documents, (ii) in violation of any statute, law, rule, regulation, order, decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries, or (iii) in default in the performance of any obligation, agreement or condition contained in any material agreement, indenture, mortgage, deed of trust, loan agreement or other instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except, in the case of clauses (ii) and (iii), where any such violation or default, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect."
"(b)Representations and Warranties. The representations and warranties made by such Purchaser in Article 3 shall be true and correct in all material respects as of the Closing Date, except to the extent that such representations and warranties are qualified by the term material, or contain terms such as Material Adverse Effect in which case such representations and warranties (as so written, including the term material or Material Adverse Effect) shall be true and correct in all respects as of the Closing Date."
"6.3Affiliate means, with respect to any Person (as defined below), any other Person controlling, controlled by or under direct or indirect common control with such Person (for the purposes of this definition control, when used with respect to any specified Person, shall mean the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms controlling andcontrolled shall have meanings correlative to the foregoing)."
"All consents, approvals, authorizations, or orders of, and filings, registrations, and qualifications with any U.S. Federal regulatory authority or governmental body required for the issuance of the Shares, have been made or obtained, except for the filing of a Form D pursuant to Securities and Exchange Commission Regulation D. ---|--- "
"(a) PUT NOTICE. At any time and from time to time during the Commitment Period, except as provided in this Agreement, the Company may deliver a Put Notice to Investor, subject to satisfaction of the conditions set forth in Section 7.2 and otherwise provided herein. The Company shall deliver, or cause to be delivered, the Put Shares as DWAC Shares to the Investor within two (2) Trading Days following the Put Date."
"Section 4.2 AUTHORITY. The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents. The execution and delivery of this Agreement, the other Transaction Documents and Warrants by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required. Each of this Agreement, the Warrants and the other Transaction Documents has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors rights and remedies or by other equitable principles of general application."
"Section 4.7 NO CONFLICTS. The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Put Shares, Commitment Note, and the Underlying Shares, do not and will not: (a) result in a violation of the Companys or any Subsidiarys certificate or articles of incorporation, by-laws or other organizational or charter documents, (b) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, result in the creation of any Lien 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 of, any agreement, indenture, instrument or any lock-up or similar provision of any underwriting or similar agreement to which the Company or any Subsidiary is a party, or (c) result in a violation of any federal, state or local law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or any Subsidiary or by which any property or asset of the Company or any Subsidiary is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing. The business of the Company is not being conducted in violation of any law, ordinance or regulation of any governmental entity, except for possible violations that either singly or in the aggregate do not and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or the other Transaction Documents (other than any SEC, FINRA or state securities filings that may be required to be made by the Company subsequent to any Closing or any registration statement that may be filed pursuant hereto); provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of Investor herein."
"Section 6.2 LISTING OF COMMON STOCK. The Company shall promptly secure the listing of all of the Put Shares and Underlying Shares to be issued to the Investor hereunder on the Principal Market (subject to official notice of issuance) and shall use commercially reasonable best efforts to maintain, so long as any shares of Common Stock shall be so listed, the listing of all such Put Shares and Underlying Shares from time to time issuable hereunder. The Company shall use its commercially reasonable efforts to continue the listing and trading of the Common Stock on the Principal Market (including, without limitation, maintaining sufficient net tangible assets) and will comply in all respects with the Companys reporting, filing and other obligations under the bylaws or rules of FINRA and the Principal Market."
"(f) NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have been suspended by the SEC, the Principal Market or FINRA, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market. In the event of a suspension, delisting, or halting for any reason, of the trading of the Common Stock, as contemplated by this Section 7.2(f), the Investor shall have the right to return to the Company any remaining amount of Put Shares associated with such Put, and the Purchase Price with respect to such Put shall be reduced accordingly."
"(g) BENEFICIAL OWNERSHIP LIMITATION. The number of Put Shares then to be purchased by the Investor shall not exceed the number of such shares that, when aggregated with all other shares of Common Stock then owned by the Investor beneficially or deemed beneficially owned by the Investor, would result in the Investor owning more than the Beneficial Ownership Limitation (as defined below), as determined in accordance with Section 16 of the Exchange Act and the regulations promulgated thereunder. For purposes of this Section 7.2(g), in the event that the amount of Common Stock outstanding, as determined in accordance with Section 16 of the Exchange Act and the regulations promulgated thereunder, is greater on a Closing Date than on the date upon which the Put Notice associated with such Closing Date is given, the amount of Common Stock outstanding on such Closing Date shall govern for purposes of determining whether the Investor, when aggregating all purchases of Common Stock made pursuant to this Agreement, would own more than the Beneficial Ownership Limitation following such Closing Date. The Beneficial Ownership Limitation shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable pursuant to a Put Notice."
"Section 10.1 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Nevada without regard to the principles of conflicts of law. Each of the Company and the Investor hereby submits to the exclusive jurisdiction of the United States federal and state courts located in Kansas, County of Johnson, with respect to any dispute arising under the Transaction Documents or the transactions contemplated thereby."
"Section 10.9 SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any party."
"4.4 Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any national, provincial or local governmental authority of the Republic of Korea is required on the part of Ninebell or Shareholder in connection with the consummation of the transactions contemplated by this Agreement, except for such other actions as have been timely taken by Ninebell or Shareholder prior to the date hereof."